Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 1: By a six to three vote down ideological lines. The
Speaker 1: Supreme Court upheld a Republican drawn congressional map in South Carolina,
Speaker 1: rejecting a lower court's finding of racial gerrymandering and boosting
Speaker 1: Republicans in the fight to control the House for the
Speaker 1: rest of the decade. The six Conservative justices overturned a
Speaker 1: three judge panel's decision that Republican lawmakers had unconstitutionally relied
Speaker 1: on race when they removed thirty thousand black voters out
Speaker 1: of Republican Representative Nancy Mace's district a quote bleaching of
Speaker 1: African American voters from the district. Joining me is elections
Speaker 1: law expert Richard Rffald, a professor at Columbia Law School.
Speaker 1: The majority opinion by Justice Alito. What was the reasoning
Speaker 1: of the Conservative majority here?
Speaker 2: The majority concluded that the three judge court below the
Speaker 2: district court erred that there was clear error in finding
Speaker 2: that the redistricting of District one in South Carolina was
Speaker 2: done on the basis of race rather than on the
Speaker 2: basis of party. The Court recognized that racial jermy mannering
Speaker 2: and partisan jurry mannering often look alike. They said the
Speaker 2: burden was on the plaintiffs to show that this was
Speaker 2: race and not party. And then the court then kind
Speaker 2: of carefully picked apart and quite to tail the findings
Speaker 2: of the district court and concluded that the district court
Speaker 2: had made a mistake in concluding based on the evidence
Speaker 2: that this was racial rather than partisan.
Speaker 1: I mean, the district court had heard evidence right and
Speaker 1: made these conclusions that the lawmakers, the Republican lawmakers, established
Speaker 1: a target of seventeen percent black voters for the first district.
Speaker 1: Alito said the state had strong evidence that the seventeen
Speaker 1: percent figure was simply a side effect of the legislature's
Speaker 1: partisan goal. What evidence is he talking about.
Speaker 2: Well, the thing is, normally, when you're viewing a district
Speaker 2: court's findings a fact, that burden is on the state
Speaker 2: to show that the district court was completely wrong. And
Speaker 2: here he seems to have put the burden more on
Speaker 2: the plaintiffs, not just in the original case where they
Speaker 2: persuaded the district court, but also in the Supreme Court,
Speaker 2: to show that the district court was right as opposed
Speaker 2: to being reasonable. I mean, in some ways there's an
Speaker 2: argument that he in applying what is theoretically a differential
Speaker 2: standard to the district court, the Senative clearly erroneous. He
Speaker 2: went much further and in some sense reviewed all the
Speaker 2: facts himself and concluded that on his reading of the
Speaker 2: facts and his reading of the expert testimony, the plaintiffs
Speaker 2: had not made their case.
Speaker 1: He also said that a party challenging a map's constitutionality
Speaker 1: must disentangle race and politics if it wishes to prove
Speaker 1: the legislature was motivated by race as opposed to partisan
Speaker 1: jip and the challenges provided no direct evidence of a
Speaker 1: racial gerrymander. Is he looking for a statement by a
Speaker 1: Republican lawmaker, or we're doing this because of race?
Speaker 3: Righting me.
Speaker 2: It basically said you could either do it by direct evidence,
Speaker 2: like a smoking gun statement, or by strong circumstantial evidence.
Speaker 2: And hear what the plaints were about the show is,
Speaker 2: if you look at the numbers, there was a huge
Speaker 2: movement of people in and out of this district. The
Speaker 2: map makers dramatically move large numbers of people around, but
Speaker 2: in particular they seemed to be moving more black voters
Speaker 2: out and more white voters in, and so there was evident,
Speaker 2: and that in the end, with all of the movement,
Speaker 2: that sixteen point eight percent number was a number that
Speaker 2: the Republicans felt was low enough so the district would
Speaker 2: continue to chill Republican His view is that was really
Speaker 2: about partisanship. The plaintiff's view and the district courts view
Speaker 2: was that no, that showed that they were engaged in
Speaker 2: a racial gerrymander. They moved like one hundred and eighty
Speaker 2: thousand people around, but their target was to keep the
Speaker 2: racial fraction the same, and they did it by moving
Speaker 2: black voters in one direction and white vote in a
Speaker 2: different direction.
Speaker 1: The dissent, written by Justice A. La Keg and joined
Speaker 1: by the two other liberal justices, was scathing.
Speaker 2: She basically said that this case looks a lot like
Speaker 2: a case the Supreme Court decided seven years earlier, Cooper
Speaker 2: versus Harris, which presented a very very similar question of
Speaker 2: was it race or was it party in a districting
Speaker 2: dispute coming out of North Carolina, and the lower court
Speaker 2: had found that it was race, and the Supreme Court
Speaker 2: a firm basically by saying, you know that we're relatively
Speaker 2: different to the lower court. And the lower court had
Speaker 2: facts that support it. Kagan wrote the majority opinion in
Speaker 2: that case, Alito wrote the descent, and as she points out,
Speaker 2: much of the language and much of the ideas of
Speaker 2: Alito's majority opinion come directly from his descent in Cooper
Speaker 2: versus Harris, a case decided about seven years ago, and
Speaker 2: so her view is that this case he should have
Speaker 2: been governed by that case and should have come out
Speaker 2: the same way.
Speaker 1: She also said the majority was stacking the deck against
Speaker 1: the challengers when it presumes legislators are acting in good faith,
Speaker 1: and she quoted from Alito's opinion when racial clu notifications
Speaker 1: in voting are at issue, the majority says every doubt
Speaker 1: must be resolved in favor of the state, lest heaven
Speaker 1: forfend it be accused of quote offensive and demeaning conduct.
Speaker 1: I mean taking Alito head on, Yeah.
Speaker 2: I mean Alito begins with the basic premise that whenever
Speaker 2: a law is challenged, the law has presumptively valid. The
Speaker 2: burden is on the plaintiffs to show that it's invalid.
Speaker 2: And that's the kind of judicial review one on one,
Speaker 2: as you begin with the presumption of validity. But she's saying,
Speaker 2: in effect, she's taking it so far that he's using
Speaker 2: it not at the opening stage of the case, but
Speaker 2: on the appeal following a determination by the district Court
Speaker 2: after a lengthy trial with lots of testimony, lots of exhibits,
Speaker 2: lots of depositions, as pre judge panel that found the
Speaker 2: other way. And so she's saying that, in effect, he's
Speaker 2: putting such a heavy thumb on the scale for the
Speaker 2: legislature that he's making it almost impossible for plaintiffs to
Speaker 2: prevail in a case, even after they prevail before the
Speaker 2: district court.
Speaker 1: Is this decision raising there for winning a challenge to
Speaker 1: a map based on racial jerry mandering.
Speaker 2: I think it is. I mean, I think basically the
Speaker 2: burden is now even heavier on the plaintiffs to disentangle
Speaker 2: race from party and to show it was clearly race
Speaker 2: and not party, as opposed to the intertwining that we
Speaker 2: often see. So I do think although technically he's applying
Speaker 2: the same standards as before, he is now hying them
Speaker 2: in a much tougher way. He's also added a kind
Speaker 2: of requirement that court had rejected as a requirement before,
Speaker 2: which is that the plaintiffs produce an alternative map which
Speaker 2: produces the same partisan results but with a different racial
Speaker 2: makeup to show that it really was race and not
Speaker 2: party that was driving this court in the past that
Speaker 2: said having a map is helpful, but now he has
Speaker 2: come very close to making it a requirement.
Speaker 1: And then you have Clarence Thomas, who joined the majority
Speaker 1: but wrote separately, do basically say federal courts should just
Speaker 1: keep out of this issue completely.
Speaker 2: That's correct. He basically said that ago in the Rout
Speaker 2: show case, we decided that partisan jerrymandering is not justiciable.
Speaker 2: Now I think that racial jerry mandering is justice non justiciable,
Speaker 2: and that it's so difficult to figure out to disentangle
Speaker 2: the legislative motivation and legislative consequences. That that's for the
Speaker 2: state legislatures and for Congress. Congress has the power to
Speaker 2: review this and write rules, but it's something that the
Speaker 2: courts can't handle. And he actually didn't join one part
Speaker 2: of the opinion, the part of the opinion where Justice
Speaker 2: Alito went through all of the expert testimony and picked
Speaker 2: it apart, and he basically said, you didn't need to
Speaker 2: do that. But more of the points, the fact that
Speaker 2: you would engage in so much detail with the expert testimony.
Speaker 2: It's one of the reasons why I don't think courts
Speaker 2: should be involved in this at all.
Speaker 1: It is difficult to separate race from politics. But now
Speaker 1: does this give, as Elena Kagan said, it gives state
Speaker 1: lawmakers an incentive to use race as a proxy to
Speaker 1: achieve partisan ends.
Speaker 2: Yes, I think until now the Court has said that
Speaker 2: although we won't hear parties in jerrymandering cases, we will
Speaker 2: hear claims of racial gerrymandering. So it was one way
Speaker 2: in which plaintiffs couldn't directly attack the parties in jerrymander
Speaker 2: but they could try and do that if they could
Speaker 2: show that it was also a racial gerrymander. Now the
Speaker 2: Court has pretty much made that impossible, or made it
Speaker 2: an even much much harder to be able to make
Speaker 2: a racial gerrymanderin claim outside the context of party. I
Speaker 2: suppose you could have a racial gerrymandering claim in a
Speaker 2: one party state, but in a situation where rac and
Speaker 2: party are so intertwined, it's going to be much harder
Speaker 2: to make any kind of racial gerrymandering claim.
Speaker 1: So for anyone who thought that the Conservatives had changed
Speaker 1: when the Court rule that Alabama Republicans violated the Voting
Speaker 1: Rights Act? Is this proof that, No, it hasn't changed.
Speaker 2: I think it shows the ongoing difficulty of dealing with
Speaker 2: these districting disputes when race and party are so intertwined.
Speaker 2: And yes, that case, the Alabama case was a case
Speaker 2: where the court did differ the findings of the lower court,
Speaker 2: and there although there was a situation where the plaintiffs
Speaker 2: didn't provide alternative maps to show that the district could
Speaker 2: be done in a different way. But I think in
Speaker 2: some ways that it really does show the court's kind
Speaker 2: of impatience with the effort to possibly outflank the court's
Speaker 2: unwillingness to hear partisan jury mannering claims by hearing racial
Speaker 2: jury mannering claims where if the plaintiffs win, the victory
Speaker 2: would be similar to the victory to partisan jurry mannoring case.
Speaker 2: I think they've just made that much harder. It's not impossible.
Speaker 1: What's the difference between challenging a map under the Voting
Speaker 1: Rights Act and under the Equal Protection Clause of the
Speaker 1: Constitution which this case was brought under. Could these plaintiffs
Speaker 1: have brought this case under the Voting Rights Act?
Speaker 2: They did bring a Voting Rights Act vote dilution claim,
Speaker 2: which I think they won on, but the Supreme Court
Speaker 2: said the lower court erred on that as well, because
Speaker 2: the lower courts have applied the same standard and it's
Speaker 2: a different standard for bote dilution cases. So they reversed
Speaker 2: and remanded. So if there's going to be a trial
Speaker 2: on that, it would be the different claim. I think
Speaker 2: they are somewhat different theories. The theory legal protection claim
Speaker 2: is that the state's motivation was predominantly racial. Doesn't have
Speaker 2: to show that there was an underrepresentation of black voters,
Speaker 2: but just that the state was purposely drawing lines based
Speaker 2: on race. And whereas both dilution, you don't even have
Speaker 2: to show that a race was intentional. What you do
Speaker 2: have to show is that as a result of the
Speaker 2: line drawing, black voters or voters of color were underrepresented,
Speaker 2: that it was more difficult for them to win elections
Speaker 2: than otherwise.
Speaker 1: Would you say that For the last decade or so,
Speaker 1: the Roberts Court's decisions have made it harder for black
Speaker 1: voters to challenge redistricting plans.
Speaker 3: Well.
Speaker 2: The Roberts Court obviously famously got rid of Section five
Speaker 2: of the Voting Rights Act, which required dates in covered
Speaker 2: jurisdictions to get Justin Department approvals first, so therefore actually
Speaker 2: putting the burden on plaintiffs to go ahead. I think
Speaker 2: how they've handled both dilution cases has been a little inconsistent.
Speaker 2: As you point out Plank, that is one of vote
Speaker 2: dilution cases from Alabama last year. This was technically a
Speaker 2: constitutional case, so it's a little hard to characterize sometimes
Speaker 2: plaintiffs of one, but certainly this one I think is
Speaker 2: going to make it much harder for plaintiffs to win
Speaker 2: cases like this.
Speaker 1: Thanks so much, rich That's Professor Richard Briffald of Columbia
Speaker 1: Law School. Coming up next on the Bloomberg Law Show.
Speaker 1: It looks like the jury and the Trump hush money
Speaker 1: case will begin deliberations next week. We'll take a look
Speaker 1: at the prosecution's case. I'm June Grosso and you're listening
Speaker 1: to Bloomberg. The historic first criminal trial of a former
Speaker 1: president is nearing a conclusion. Manhattan jury will decide whether
Speaker 1: the former president falsified his company's records to hide a
Speaker 1: hush money payment to poor and star Stormy Daniels and
Speaker 1: influence the twenty sixty election. The case could be in
Speaker 1: the jury's hands as soon as Tuesday, after closing arguments
Speaker 1: by both sides and jury instructions. Joining me is criminal
Speaker 1: defense attorney Jeremy saland a former Manhattan prosecutor. Let's start
Speaker 1: with the cross examination of Michael Cohen, the prosecution star witness.
Speaker 1: The defense attorney was very aggressive. How effective was he
Speaker 1: in undermining Cohen's credibility which sort of hangs by a thread.
Speaker 4: Anyway, I think that there was diminishing returns in the
Speaker 4: time frame that a Blanche kept him on the stand,
Speaker 4: the lack of what I thought was enough leading questions
Speaker 4: as opposed to open ending questions from what I read.
Speaker 4: And I also thought that there were times when he
Speaker 4: hits some of the same points over and over, and
Speaker 4: that goes back to the diminishing returns. And it's not
Speaker 4: just diminishing returns in that you lose the jury they
Speaker 4: get the point, but you also run the risk of
Speaker 4: opening certain doors. The end of his cross examination went flat.
Speaker 4: It could have been better, but at the same time,
Speaker 4: it exposed Michael Cohen for who he was, which is
Speaker 4: a conniving, dishonest, selfish person with an agenda to really
Speaker 4: hurt the former president. Now I will say this though,
Speaker 4: and this shouldn't be lost in anybody. When we think
Speaker 4: of John Gotti, by a show of hands, how many
Speaker 4: people think the man was innocent. He was convicted after trial.
Speaker 4: And I'm not comparing the two and saying Donald Trump
Speaker 4: is John Gotti. But who was the main cooperator in
Speaker 4: that case? It was Sammy the Bull. So when we
Speaker 4: hear up beating up Michael Cohen, and we hear about
Speaker 4: the attacks on Michael Cohen, you know he's not Sammy
Speaker 4: the Bull. And if Sammy the Bull, who was alleged
Speaker 4: to have committed I believe some nineteen somehid murders could
Speaker 4: cooperate and have credibility and there could be a finding
Speaker 4: of guilt against John Gotti. So that matter. How many
Speaker 4: people love the movie Goodfellas that's based on Henry Hill.
Speaker 4: Henry Hill was a cooperator who had a rap sheet
Speaker 4: in all sorts of bad things. And people loved Henry Hill,
Speaker 4: or at least they loved Rayleiota in the movie. So
Speaker 4: you know, let's have some here. You don't catch the
Speaker 4: main bad guy, you don't get the kingpin, you don't
Speaker 4: get the main drug dealer. You don't get the main mobster,
Speaker 4: not saying again that that that's who Donald Trump was.
Speaker 4: But you don't get him or her unless you get
Speaker 4: the person who is next in line, a lieutenant, a worker,
Speaker 4: the dealer, the guy who cuts the drugs, the guy
Speaker 4: who counts the money. You don't get that unless you
Speaker 4: have some of those dirty hands. That's how you get
Speaker 4: the big boss.
Speaker 1: There were some things that Todd Blanche, the defense attorney,
Speaker 1: brought out that cast out on Cohen's testimony at trial.
Speaker 1: For example, that phone call he made in October of
Speaker 1: twenty sixteen where he said he was updating Trump on
Speaker 1: the Stormy Daniels payment, and it came out that he
Speaker 1: probably was not talking to Trump.
Speaker 4: Well, I don't know if that's how it came out there.
Speaker 4: It was probably not talking to Trump, because you'd have
Speaker 4: to think that Michael Cohen would call Trump's right hand man,
Speaker 4: was speaking of ninety seconds about some teen harassing him.
Speaker 4: Maybe maybe not, but any New Yorker understands this. I
Speaker 4: think if you were born and or lived in New
Speaker 4: York at any point in your life, you know this.
Speaker 4: If you're sitting at a light and you're sitting in
Speaker 4: traffic for thirty seconds for a minute, you got something
Speaker 4: to do. That's an eternity, it's forever. In other words,
Speaker 4: ninety seconds to be on the phone very well could
Speaker 4: have included three seconds, ten seconds, seventy seconds of conversation
Speaker 4: about this teenager. But it's not mutually exclusive. Just because
Speaker 4: you're talking about one doesn't mean you're not talking about another.
Speaker 4: A minute and a half is a long time.
Speaker 1: The defense called two witnesses in their case. The last
Speaker 1: one was lawyer Bob Costello, who I think they called
Speaker 1: to damage Cohen's credibility even further, but he ended up
Speaker 1: acting out on the witness stand, being disrespectful to the judge,
Speaker 1: rolling his eyes, muttering on the stand, and incredible. The
Speaker 1: judge said at one point, are you staring me down
Speaker 1: right now? And the judge cleared the courtroom.
Speaker 4: The way this happened, though, is atypical, and it's really
Speaker 4: disappointing if I'm Donald Trump's team in Donald Trump, because
Speaker 4: you have a witness who objectively could have shared some
Speaker 4: really valuable things and information about Michael Cohen, supposedly telling him,
Speaker 4: meaning Pastello, that Donald Trump wasn't aware that basically Donald
Speaker 4: Trump was not in the noah on what was going on,
Speaker 4: but it was lost in the petulance, sophomoric, amateur behavior
Speaker 4: from a guy who served in his senior capacity at
Speaker 4: the US Attorney's office. This is not his first rodeo.
Speaker 4: What he was thinking, he shot his own credibility in
Speaker 4: the flot. You know, don't run your mouth, show respect
Speaker 4: to the court. You may be a fed and you
Speaker 4: look down on the state. Maybe that's a little des arrogance.
Speaker 3: I don't know.
Speaker 4: But you're in a court of law and follow the
Speaker 4: court's instructions. And as I tell every witness, every witness,
Speaker 4: kill him with kindness. Looked the defense or prosecution in
Speaker 4: the eyes, look the jury in the eyes, be respectful,
Speaker 4: be the bigger person. That's what he did not do.
Speaker 4: And I'm really surprised.
Speaker 1: I'm really surprised, experienced lawyer. So the biggest news to
Speaker 1: come out of the trial this week was no news. Actually,
Speaker 1: Trump had vowed to testify in his own defense and
Speaker 1: started backing off. I don't know that any defense lawyer
Speaker 1: would have encouraged him to testify. So was that the
Speaker 1: right decision?
Speaker 4: I know, quivocally absolutely, and any criminal defense attorney would say,
Speaker 4: especially in a case like this where he has a
Speaker 4: chance to hang. Do I think he's get an acquittal?
Speaker 4: And know? But I'm going down on the limb here.
Speaker 4: I may be completely totally wrong. So I could read juries,
Speaker 4: I would be charging a lot more. I think we
Speaker 4: all would. But none of us could read a jury's mind.
Speaker 4: But you know I've used this term before, and I'll
Speaker 4: go back to what every New Yorker knows. Every New
Speaker 4: Yorker knows the term hutzbook. And he did not have
Speaker 4: the hutspur to get up there despite his behavior and
Speaker 4: his demeanor. He would get eviscerated, He would get hung
Speaker 4: by his toes and hung out to try. And if
Speaker 4: he has a chance of beating this case, he would
Speaker 4: have lost it if he ran his mouth, because he
Speaker 4: would have opened up door after door, and as bad
Speaker 4: as Costello was, and as good, frankly as Michael Cohen was,
Speaker 4: none of them even on their worst dand would have
Speaker 4: done what Donald Trump would have potentially done on that stand.
Speaker 4: So it was a smart move, an intelligent move, common
Speaker 4: sense move, not to get up and testify.
Speaker 1: Looking at the prosecution's case. Has the prosecution made out
Speaker 1: its case?
Speaker 4: Do you think I thought the evidence. Again, if I
Speaker 4: wasn't in the court room, but from what I've read,
Speaker 4: I thought the evidence went in pretty well. There is
Speaker 4: an element of common sense that is so critically important here.
Speaker 4: You know, if I'm the prosecution, I'm arguing saying, you
Speaker 4: have Weifelberg's handwriting on these notes. It's not just Michael Cohen.
Speaker 4: It's not just Stormy Daniels. You have you know, phone logs,
Speaker 4: you have other witnesses. You have Whope Hicks, who puts
Speaker 4: people in certain places at certain times, who describes Michael
Speaker 4: Cohen these are my words, not as a getting generous
Speaker 4: person that he's going to go out on a limb. Here,
Speaker 4: a man who I believe made roughly a half a
Speaker 4: million dollars a year and took a whole equity line
Speaker 4: of credit out to hide it to why he was
Speaker 4: getting them the money and to hide it from his wife,
Speaker 4: and was going to bear responsibility and take ownership of
Speaker 4: those dollars. That seems, like, you know, pretty unlikely. So
Speaker 4: I think very much that the evidence went well. Will
Speaker 4: the jury convict, That's tough, but all they need is
Speaker 4: want to remember, All they need is want to hang
Speaker 4: in the defense.
Speaker 1: Yeah, So now legally, the case gets complicated because with
Speaker 1: the prosecution, as you know, is out to make these
Speaker 1: misdemeanors of falsifying business records into a felony, so it
Speaker 1: has to be done with the intent to commit another crime.
Speaker 1: How tricky is that? For prosecutors, it's tricky because a
Speaker 1: couple things.
Speaker 4: Let me sort of work backwards a little bit. When
Speaker 4: the jury gets the case, a judge can instruct the
Speaker 4: jury on what's called a lesser included offense, meaning the
Speaker 4: judge can tell the jury you can consider the felonies
Speaker 4: on the indictment, but even if you don't find the felony,
Speaker 4: you could find for the misdemeanor's variety or flavor of
Speaker 4: that same falsifying business records. That's what's called the lesser
Speaker 4: included defense, even though it's not actually charged. Now, the
Speaker 4: question I would ask is, if I'm the prosecution, do
Speaker 4: I ask the judge not to submit that? If I'm
Speaker 4: the defense, do I ask the judge to submit it
Speaker 4: or not to submit it? Why do I ask that?
Speaker 4: Because in my view, a conviction on the misdemeanor is
Speaker 4: a loss, and that's end. On the face of Alvin Bragg,
Speaker 4: it's really all or nothing. So it's either a conviction
Speaker 4: on the felony or an acquittal. If I'm the defense,
Speaker 4: do I want to make the jury make that decision
Speaker 4: and don't give them the sort of compromise. It's either
Speaker 4: is or it isn't. So it's an interesting question whether
Speaker 4: they're going to want the judge to instruct the jury
Speaker 4: or it's all or nothing. That's number one. Number two.
Speaker 4: The other difficulty is, you know, what is that other crime?
Speaker 4: Now you don't have to prove that crime beyond a
Speaker 4: reasonable doubt that you're trying to conceal some election crime.
Speaker 4: So don't misconstrue that to prove this secondary element to
Speaker 4: make it the felony, the intent to commit or conceal
Speaker 4: this other crime, that you have to actually prove theon
Speaker 4: a reasonable with doubt that other crime. But you know,
Speaker 4: I see as much strong evidence as you did about
Speaker 4: the actual direct evidence of falsifying business records or the
Speaker 4: circumstantial evidence, it was more difficult. So I see the
Speaker 4: misdemeanor as an easy conviction. Frankreet, from what they've done,
Speaker 4: thee going to be a little bit harder. I think
Speaker 4: they did a good job, but I think it's still
Speaker 4: going to be hard.
Speaker 1: The jury instructions are always important. How much depends on
Speaker 1: how the judge frames the instructions for that second crime.
Speaker 4: Well, there was some argument back and forth if I
Speaker 4: recall about whether there was two intents, and that's what
Speaker 4: the defense was asking for it. It's the intent to
Speaker 4: defraud and deceive, and you have to have the intent
Speaker 4: to commit another crime. There's an expanded definition of intent.
Speaker 4: For example, that's in the actual jury instructions, where there's
Speaker 4: a charge solely for intent as opposed to the intent
Speaker 4: you will find in the charge for the particular crime,
Speaker 4: which is the same across the board, which is basically
Speaker 4: it's your objective and goal, which there is an expanded version.
Speaker 4: So the jury instructions, they're going to argue back and forth,
Speaker 4: and they've already started that process as to what they
Speaker 4: believe both the defensive prosecution should be given to the jury.
Speaker 4: But this is a complicated case, but it's not. It's
Speaker 4: fairly straightforward, and if the jury has problems, they can
Speaker 4: go back and ask for the judge to reinstruct them.
Speaker 4: They can go back and ask to hear the trance
Speaker 4: script again and to listen to testimony again. But framing
Speaker 4: it has to be done on the right way. I
Speaker 4: have confidence that the court will. I have zero worry
Speaker 4: about that. But people are people. This is an intelligent jury.
Speaker 4: These are New Yorkers. They could find reasonable doubt, I'm sure,
Speaker 4: and they could find proof beyond a reasonable doubt.
Speaker 1: Has there been any real testimony or evidence on Trump's
Speaker 1: intent or motivation?
Speaker 4: The prosecution does not have to prove motive. That is
Speaker 4: not an element of the crime, to be very very clear,
Speaker 4: As much as we want to add that in as
Speaker 4: prosecutors and defense attorneys may challenge or add their own motives,
Speaker 4: it's not a requirement. So, for example, if your motive
Speaker 4: was to protect your family, as the allegations were on
Speaker 4: the home of President's side, as opposed to prosecution, which
Speaker 4: was to fix or protect the election, there is no
Speaker 4: requirement that that motive be proved beyond a reasonable doubt.
Speaker 4: I will say, however, if I'm the prosecution, I would say,
Speaker 4: even if you believe that that was his motive, that
Speaker 4: was to protect malaim if, what I would say is
Speaker 4: they're not mutually exclusive. You can want to protect your
Speaker 4: family and have the intention of protecting your family, and
Speaker 4: there's the intent, not the motive, but he also had
Speaker 4: the intent to protect himself in the election and make
Speaker 4: sure this didn't get out to protect the election. So
Speaker 4: it's a mixed bag. And in terms of the evidence
Speaker 4: coming in, this goes back to that common sense. This
Speaker 4: goes back to why are they paying for it? If
Speaker 4: you believe Trump had his hands in it, you know,
Speaker 4: why is he paying for this at this time, right
Speaker 4: before the election is about to hit, as things were
Speaker 4: going sideways, and you have Hope Hicks telling you that,
Speaker 4: you know, this could be really, really detrimental to women voters.
Speaker 4: I think they did the job they needed to do,
Speaker 4: even if not directly because you don't hear from the president,
Speaker 4: but circumstantially through all the other evidence and testimony.
Speaker 1: We may find out what the jury says about all
Speaker 1: this as soon as next week. Thanks so much, Jeremy.
Speaker 1: That's criminal defense attorney Jeremy Salande. Coming up next on
Speaker 1: the Bloomberg Lawn Show. President Joe Biden is in another
Speaker 1: race with former President Donald Trump, this one over the
Speaker 1: number of judges confirmed during their term. I'm June Grosso
Speaker 1: and you're listening to Bloomberg. It's a milestone for President
Speaker 1: Joe Biden. On Wednesday, the Senate confirmed his two hundredth
Speaker 1: judicial nominee, putting former President Donald Trump's total of two
Speaker 1: hundred and thirty four judges potentially within Biden's reach. Joining
Speaker 1: me is an expert on the federal judiciary, Carl Tobias,
Speaker 1: a professor at the University of Richmond Law School. Carl
Speaker 1: tell us about the milestone that Biden reached with the
Speaker 1: confirmation of Angela Martinez, a US magistrate judge, to Arizona's bench.
Speaker 3: Well, he appointed his two hundredth lower court judge. In fact,
Speaker 3: there's another one yesterday, so there are two hundred and
Speaker 3: one federal judges whom he has appointed. And today Biden
Speaker 3: also named four more people, two for appeals courts vacancies,
Speaker 3: one in Maine on the first Circuit and one in
Speaker 3: the sixth Circuit Tennessee, and to find district nominees. So
Speaker 3: he's following up on that milestone then moving forward. But
Speaker 3: especially important is the composition of the federal bench in
Speaker 3: the ways in which he's changed it, and we've talked
Speaker 3: about that a lot before, but especially diversity in terms
Speaker 3: of ethnicity, gender, two thirds. I think of all appointees
Speaker 3: are either women or people of color. He has broken
Speaker 3: all records for those two demographics as well as pointed
Speaker 3: as many LGBTQ people in three years as Obama appointed
Speaker 3: in eight. He's been extremely successful also experiential diversity. Twelve
Speaker 3: of the appellate nominees are former Criminal Defense Council and
Speaker 3: so he's bringing experiential balance to the bench. All of
Speaker 3: that I think is very positive.
Speaker 1: Is Biden in sort of a race to beat Trump's
Speaker 1: total of two hundred and thirty four judges.
Speaker 3: Yes, he's been very candidate about that. He pledged that
Speaker 3: he would do that when he was a candidate, and
Speaker 3: he has carried through the White House Council's office has
Speaker 3: had very strong and careful people working on finding the
Speaker 3: very best nominees and work closely with red state Republicans
Speaker 3: to ensure especially recently as the blue state seats have
Speaker 3: been filled, to bring forward people whom Biden could agree
Speaker 3: with the home state senators on and there have been
Speaker 3: some fine nominees from red states like Utah, Wyoming, and
Speaker 3: a number of other South Dakota two people just were
Speaker 3: confirmed I think last week. So they've been doing a
Speaker 3: lot of important in careful work on filling the bench.
Speaker 3: I think that's where they're headed and hoping that they
Speaker 3: will have enough time to eclipse Trump's total number of appointees.
Speaker 1: Biden inherited less than half of the vacancies to fill
Speaker 1: that Trump had. Do you think that he can make
Speaker 1: up the difference in the amount of time left in
Speaker 1: his term?
Speaker 3: I think so. But you're exactly right, as you remember,
Speaker 3: and we've talked about before. In twenty fifteen sixteen, when
Speaker 3: the Republicans recaptured the majority in the Senate, McConnell just
Speaker 3: refused to move the nominees and they would go for
Speaker 3: weeks and even months without hearings, and so they ended up,
Speaker 3: i think, confirming two circuit nominees, which left a whole
Speaker 3: number of appellate vacancies for Trump to fill, and he
Speaker 3: did that fifty four, which I think is a record
Speaker 3: for the first term of any president, to the detriment
Speaker 3: of District nowe But they filled all of them, the
Speaker 3: first time since nineteen eighty four during Reagan's administration, that
Speaker 3: all one hundred and seventy nine were filled. So there
Speaker 3: were very few whom could be succeeded. At the beginning
Speaker 3: of the administration, but some, especially appointing of Democratic presidents,
Speaker 3: did assume senior status, and Biden has named and confirmed
Speaker 3: forty two and four are waiting to be confirmed. But
Speaker 3: you're exactly right, the numbers just are not there. I
Speaker 3: do not think that it's possible unless some others assume
Speaker 3: senior status and very soon that Biden will be able
Speaker 3: to match that. But again, these two today are very helpful,
Speaker 3: and there I think four or five other vacancies that
Speaker 3: still remain that could be filled. So it may be closed.
Speaker 3: I mean, he may have fifty or he may even
Speaker 3: come up to fifty four, but it seems unlikely. Still,
Speaker 3: he's way ahead of Trump right now on district nominees,
Speaker 3: and so that's promising.
Speaker 1: Why has the confirmation to the Third Circuit Appellate Court
Speaker 1: of a nominee who would be the first Muslim to
Speaker 1: serve on a federal appeals court? Why has that been stalled?
Speaker 3: A deal among the is very well qualified. He's a
Speaker 3: longtime partner at a very prestigious and tourisfic firm in
Speaker 3: New York, and he has done an enormous amount of
Speaker 3: pro bono work, especially involving religious freedom. But the Republican
Speaker 3: senators on the committee and off the committee basically attacked
Speaker 3: him and asked him many questions, most of which were
Speaker 3: improper during his hearing, and two Democratic senators from Nevada
Speaker 3: have said that law enforcement officials came to them and
Speaker 3: said that he had done some things that they didn't
Speaker 3: think were appropriate. So they have said so far that
Speaker 3: they would not vote for him. That may change, it's
Speaker 3: not clear, but time is running out, and so some
Speaker 3: are suggesting that monkey stepped down. But the White House
Speaker 3: has been firm and said, you know, we're behind the nominee.
Speaker 3: It's his decision and he needs to make that decision himself.
Speaker 3: And so far he has hung in there and had
Speaker 3: strong support from Biden, from the New Jersey senator's Booker,
Speaker 3: and Menendez and most of the Democrats, all of you know,
Speaker 3: the Democrats on the committee voted in favor of him
Speaker 3: as eleven to ten.
Speaker 1: Menendez is out of the picture, I think while his
Speaker 1: trial is on. And then if you have two Democratic
Speaker 1: senators who won't vote for him, he can't win in
Speaker 1: the full Senate.
Speaker 3: Unless some Republicans don't show up, and they haven't shown
Speaker 3: up recently for certain nominees. I've been watching that. Sometimes
Speaker 3: as many as eight to ten have not voted. If
Speaker 3: that were to happen, it's conceivable, but I expect McConnell will.
Speaker 3: It is very hard to have all of the GOP
Speaker 3: members there when the vote is taken, if it's taken,
Speaker 3: but so far we just have to see what's going
Speaker 3: to happen.
Speaker 1: They're also languishing. Dana Jackson, who would become the first
Speaker 1: American Indian judge on Montana's District Court, wasn't given a
Speaker 1: hearing on Wednesday, and also the nomination of Mustafa Kasubai
Speaker 1: for the District Court for the District of Oregon. I mean,
Speaker 1: does any of this have to do with the fact
Speaker 1: that they're people of color.
Speaker 3: Well, the GOP senators again in the committee, have questioned
Speaker 3: them in terms of ideology. For example, certainly Kasubai, I
Speaker 3: think they have accused him of being woke, if you will,
Speaker 3: and some other questions that they had. I think he'll
Speaker 3: be confirmed when the vote is finally taken. And I
Speaker 3: agree with you about Dana Jackson from Montana. But Steve
Speaker 3: Danes is heading up the Republican Senatorial Campaign Committee and
Speaker 3: he has not returned the blue slip which is unfortunate
Speaker 3: because she's a very fine, experienced nominee and has held
Speaker 3: a number of important positions in federal and state government,
Speaker 3: and so I think hopefully he will lift that. And
Speaker 3: of course he's trying to defeat John Tester, who is
Speaker 3: a longtime Senator from Montana. I think that may in
Speaker 3: part explain his retaining the blue slip, and he said
Speaker 3: some pretty incendiary things in his statement on the day
Speaker 3: she was nominated, So we'll see. She would be the
Speaker 3: fifth Native American woman to be appointed by Biden, which
Speaker 3: is more than half of Native Americans who have served
Speaker 3: on the federal bench in history, and she's a history maker.
Speaker 3: So of course the optimistic that he would lift at
Speaker 3: that hold.
Speaker 2: Yeah.
Speaker 1: I mean, roughly a quarter of federal district courts have
Speaker 1: never had a non white judge.
Speaker 3: From what I understand, that's true, but Biden is determined
Speaker 3: to remedy that as well. For example, Jasmine June over
Speaker 3: in the Western District of Virginia had never been anybody
Speaker 3: on that court who was a person of color, and
Speaker 3: she's a Korean American and very impressive, and she overwhelmingly
Speaker 3: was confirmed to that seat, and all around the country
Speaker 3: people of color have been desegregating, if you will, a
Speaker 3: number of the district courts that have never had people
Speaker 3: of color. As article three judges.
Speaker 1: Trump got to a point three Supreme Court justices, Bien
Speaker 1: only one, and some progressives are calling on Justice Sonya
Speaker 1: Soto Major to step down to give Biden a chance
Speaker 1: to appoint his second justice. What do you think about
Speaker 1: those calls.
Speaker 3: I think that people have to make up their own
Speaker 3: minds about what the best thing to do is. And
Speaker 3: some people were very critical when they called. Others called
Speaker 3: for Justice Brier to step down when I don't think
Speaker 3: he was really ready to do that. So it's a
Speaker 3: very personal decision that every justice or judge has to
Speaker 3: make for himself or herself. And I understand because of
Speaker 3: what happened with Justice s Ginsberg, and so those are
Speaker 3: the counter concerns that people have. But it's it's already
Speaker 3: pretty late, and I think Justice Soto Mayor is in
Speaker 3: relatively good health and so I think she'll continue on.
Speaker 3: So we'll just have to see. People are entitled to
Speaker 3: do whatever they want, of course, but with some respect
Speaker 3: for sitting justices.
Speaker 1: I also want to get your input on this controversy.
Speaker 1: Over the flags outside Justice Alito's house and summer house,
Speaker 1: similar to ones carried by the January sixth rioters.
Speaker 3: Well, I think it's unfortunate for the Court. There was
Speaker 3: already the problem of the leaked opinion and dabbs other
Speaker 3: ethical issues involving Justice Thomas and Justice Alito, and concern
Speaker 3: concern from Judiciary Chair Durbin and a number of Democrats
Speaker 3: about losing respect for the Supreme Court. And so it
Speaker 3: seems like there are two at least two cases, the
Speaker 3: Community case and the other involving the January sixth defendants,
Speaker 3: and the question of whether, for example, Justice Alito ought
Speaker 3: to recuse and Justice Thomas as well from those cases,
Speaker 3: given the connections and given what's happened, and if you remember,
Speaker 3: they did finally agree on the Screme Court to adopt
Speaker 3: some kind of ethics code which I think mirrors twenty
Speaker 3: eight Usc. Four fifty five, which covers conflicts of interest
Speaker 3: and speaks of appearance of a conflict, would be enough
Speaker 3: to a neutral observer. And so I think there are
Speaker 3: real questions about whether what Justices Thomasin and Alito have
Speaker 3: done that might bear on the refusal question in those
Speaker 3: two important cases. But I haven't seen any sign yet
Speaker 3: that they are inclined to do that.
Speaker 1: It certainly doesn't look like it. Thanks so much, Carl Bes,
Speaker 1: Professor Carl Tobias of the University of Richmond Law School.
Speaker 1: And that's it for this edition of the Bloomberg Law Podcast.
Speaker 1: Remember you can always get the latest legal news by
Speaker 1: subscribing and listening to the show on Apple Podcasts, Spotify,
Speaker 1: and at Bloomberg dot com, slash podcast Slash Law. I'm
Speaker 1: June Grosso and this is Bloomberg