1 00:00:00,480 --> 00:00:05,720 Speaker 1: You're listening to Bloomberg Law with June Grassoe from Bloomberg Radio. 2 00:00:07,200 --> 00:00:11,160 Speaker 1: In an extremely unusual move, the Justice Department is trying 3 00:00:11,200 --> 00:00:14,000 Speaker 1: to take over the defense of President Trump in a 4 00:00:14,080 --> 00:00:18,599 Speaker 1: defamation suit brought by advice columnist E Jean Carroll, who 5 00:00:18,640 --> 00:00:22,640 Speaker 1: claims Trump raped her two decades ago. Attorney General Bill 6 00:00:22,680 --> 00:00:26,200 Speaker 1: Barr defended the actions of the Justice Department, claiming it 7 00:00:26,239 --> 00:00:29,960 Speaker 1: was normal for Justice to get involved because Trump denied 8 00:00:30,040 --> 00:00:33,840 Speaker 1: Carol's rape accusation and called her a liar as part 9 00:00:33,880 --> 00:00:37,600 Speaker 1: of his official duties. Little campus that's going on is 10 00:00:37,800 --> 00:00:43,440 Speaker 1: is largely because of the bizarre political environment which we live. 11 00:00:43,880 --> 00:00:48,400 Speaker 1: Joining me is Bloomberg Legal reporter Eric Larson. Let's start 12 00:00:48,560 --> 00:00:54,160 Speaker 1: with Carol's lawsuit. It's a defamation lawsuit, but it's really 13 00:00:54,160 --> 00:00:59,040 Speaker 1: about allegations of rape. Yeah, that's correct. Back in June 14 00:00:59,120 --> 00:01:02,840 Speaker 1: last year, Um, the well known New York By columns 15 00:01:02,880 --> 00:01:07,760 Speaker 1: that e Gene Carol Um went public with allegations that Trump, 16 00:01:08,160 --> 00:01:11,720 Speaker 1: back in the mid nineties, Um had allegedly raped her. 17 00:01:12,000 --> 00:01:15,440 Speaker 1: Um and fortfully, Um you know, attacked her in addressing 18 00:01:15,480 --> 00:01:18,240 Speaker 1: room at a Bird Org Goodman Department store in Manhattan 19 00:01:18,240 --> 00:01:20,920 Speaker 1: when they had bumped into each other, and they recognized 20 00:01:20,959 --> 00:01:24,160 Speaker 1: each other, UM, and had had friendly shopping together for 21 00:01:24,160 --> 00:01:26,880 Speaker 1: a little bit until this alleged attack occurred. She said 22 00:01:26,920 --> 00:01:29,160 Speaker 1: she kept it to herself. She only told a few 23 00:01:29,200 --> 00:01:31,440 Speaker 1: friends actually, but other than that, kept it to herself, 24 00:01:32,000 --> 00:01:34,880 Speaker 1: UM until she decided to go public just ahead of 25 00:01:34,920 --> 00:01:38,399 Speaker 1: coming out with a new book. UM. So obviously they 26 00:01:38,440 --> 00:01:41,360 Speaker 1: caused a bit of a sensation. And Trump uh strongly 27 00:01:41,400 --> 00:01:44,640 Speaker 1: denied these claims. UM called her and you know, essentially 28 00:01:44,680 --> 00:01:46,800 Speaker 1: said that she was a liar, said even that she 29 00:01:47,000 --> 00:01:49,800 Speaker 1: wasn't his type. Um is the way he put it. 30 00:01:50,400 --> 00:01:54,040 Speaker 1: UM and uh ms. Carroll believed that she had been 31 00:01:54,080 --> 00:01:57,800 Speaker 1: defamed by that denial, and in November, UM, she filed 32 00:01:57,800 --> 00:02:01,320 Speaker 1: this defamation lawsuit against the president in state court here 33 00:02:01,320 --> 00:02:04,559 Speaker 1: in New York. So how far has that suit got? 34 00:02:05,360 --> 00:02:09,639 Speaker 1: It has progressed pretty uh far for the Carol, She's 35 00:02:09,960 --> 00:02:13,720 Speaker 1: her case survived emotions to dismiss that the president had 36 00:02:13,760 --> 00:02:18,040 Speaker 1: filed back in January. On the judge rejected President Trump's 37 00:02:18,480 --> 00:02:21,440 Speaker 1: argument that the case should be dismissed because he wasn't 38 00:02:21,480 --> 00:02:24,919 Speaker 1: subject to New York jurisdiction. He tried to argue, who 39 00:02:24,960 --> 00:02:27,639 Speaker 1: has in Washington now and he's you know, of course 40 00:02:27,680 --> 00:02:31,120 Speaker 1: he's been said that he's moving to Florida, but the 41 00:02:31,200 --> 00:02:34,840 Speaker 1: judge rejected that, said there are various steps people actually 42 00:02:34,880 --> 00:02:37,680 Speaker 1: need to go through to change residency and that he 43 00:02:37,720 --> 00:02:40,440 Speaker 1: really hadn't done that, and so uh, the case was 44 00:02:40,480 --> 00:02:43,120 Speaker 1: allowed to go forward and set on a schedule for 45 00:02:43,360 --> 00:02:47,400 Speaker 1: discovery or the exchange of evidence in the case. Um. 46 00:02:47,520 --> 00:02:50,400 Speaker 1: So there were some other preliminary rulings as well that 47 00:02:50,840 --> 00:02:54,960 Speaker 1: Carol came out untalked for. So um the case was 48 00:02:55,280 --> 00:03:00,760 Speaker 1: now progressing pretty rapidly toward discovery. Um. He President Trump 49 00:03:00,800 --> 00:03:03,440 Speaker 1: did make a last minute attempts to put the case 50 00:03:03,480 --> 00:03:07,480 Speaker 1: on hold, to stay the case, but that was denied. 51 00:03:07,880 --> 00:03:12,639 Speaker 1: This suit was filed in Trump has been represented by 52 00:03:12,760 --> 00:03:17,440 Speaker 1: his personal attorney, right, Mark Caswitz. That's correct. He's had 53 00:03:17,480 --> 00:03:19,640 Speaker 1: a few lawyers working on the case, and he's been 54 00:03:19,680 --> 00:03:24,680 Speaker 1: one of them. Um. They have, you know, filed repeated 55 00:03:24,720 --> 00:03:28,679 Speaker 1: attempts to stay the case. Um, and each of them 56 00:03:28,840 --> 00:03:32,359 Speaker 1: have been rejected pretty forcefully by the courts. That they're 57 00:03:32,400 --> 00:03:35,080 Speaker 1: clearly had been making every effort to to put the 58 00:03:35,120 --> 00:03:38,440 Speaker 1: case on hold, and I should say most recently they 59 00:03:38,480 --> 00:03:40,600 Speaker 1: did argue that the case should be put on hold. 60 00:03:41,080 --> 00:03:46,200 Speaker 1: UM because the Supreme Court hadn't resolved the issue of 61 00:03:46,240 --> 00:03:49,480 Speaker 1: whether or not a president could face a state court action, 62 00:03:49,880 --> 00:03:52,960 Speaker 1: and that, of course was the big landmark case recently 63 00:03:53,320 --> 00:03:56,520 Speaker 1: involving the Manhattan District Attorney Sivance whether or not he 64 00:03:56,560 --> 00:04:00,640 Speaker 1: could subpoena the president's tax records and finance to documents 65 00:04:00,720 --> 00:04:03,960 Speaker 1: is part of an an investigation um. And of course 66 00:04:04,040 --> 00:04:06,920 Speaker 1: the Supreme Court ruled um that the president did not 67 00:04:07,000 --> 00:04:09,800 Speaker 1: have the broad immunity from state court actions that he 68 00:04:09,960 --> 00:04:13,400 Speaker 1: argued he did in that advance case. And so as 69 00:04:13,400 --> 00:04:16,719 Speaker 1: a result, Uh, Miss Carroll's lawyer said, hey, there's no 70 00:04:16,760 --> 00:04:20,440 Speaker 1: reason to keep this case um on hold. Clearly the 71 00:04:20,480 --> 00:04:23,920 Speaker 1: Supreme Court has ruled that the sitting president is not 72 00:04:24,000 --> 00:04:26,679 Speaker 1: immune from state court actions like the one in this court. 73 00:04:27,200 --> 00:04:30,039 Speaker 1: And that case was again it was allowed to proceed 74 00:04:30,040 --> 00:04:34,640 Speaker 1: towards discovery. So now, what has the Justice Department done 75 00:04:34,760 --> 00:04:39,440 Speaker 1: to intervene here? Well, that's really the latest big twist 76 00:04:39,640 --> 00:04:43,680 Speaker 1: in this case. And it didn't It wasn't expected by anyone. 77 00:04:43,680 --> 00:04:49,600 Speaker 1: It wasn't expected by Carol or her well known litigator lawyer, ROBERTA. Kaplan. Uh, 78 00:04:49,839 --> 00:04:52,760 Speaker 1: they just really didn't see this coming. The Justice Department 79 00:04:52,839 --> 00:04:56,640 Speaker 1: on Tuesday filed UM court papers and Federal Court in 80 00:04:56,680 --> 00:04:59,720 Speaker 1: the Southern District of New York to remove the case 81 00:04:59,760 --> 00:05:03,440 Speaker 1: from State court UM, saying that because the suit is 82 00:05:03,560 --> 00:05:08,040 Speaker 1: filed against the sitting President UM, the Attorney General's Office 83 00:05:08,040 --> 00:05:12,760 Speaker 1: had determined that UH the allegations that the center of 84 00:05:12,839 --> 00:05:17,400 Speaker 1: the defamation suits UM were related to President Trump of 85 00:05:17,800 --> 00:05:20,760 Speaker 1: actions in his official capacity at the time, that he 86 00:05:20,880 --> 00:05:24,120 Speaker 1: denied Carol's claims and allegedly the same to her, and 87 00:05:24,160 --> 00:05:27,800 Speaker 1: that since this was an official capacity at the Justice 88 00:05:27,839 --> 00:05:32,760 Speaker 1: Department said that it could substitute its the United States 89 00:05:32,760 --> 00:05:35,480 Speaker 1: Government for Trump as the defendant in the case and 90 00:05:35,520 --> 00:05:39,160 Speaker 1: move the case to federal court under the Federal Court 91 00:05:39,200 --> 00:05:44,720 Speaker 1: Claims Act, which essentially shields UM government employees federal government 92 00:05:44,720 --> 00:05:49,040 Speaker 1: employees from being sued in their individual capacity UM in 93 00:05:49,120 --> 00:05:51,799 Speaker 1: some cases. ERIC. It would be sort of a triple 94 00:05:51,880 --> 00:05:55,760 Speaker 1: whammy for Carol if the judge allows this move, because 95 00:05:55,839 --> 00:05:58,960 Speaker 1: the case would be in federal court instead of state court. 96 00:05:59,480 --> 00:06:02,760 Speaker 1: The Justice Department, with all its resources, would take over 97 00:06:02,839 --> 00:06:06,159 Speaker 1: defending the suit, and Trump might not even be liable 98 00:06:06,200 --> 00:06:09,679 Speaker 1: under the Federal Tort Claims Act. That's right. It would 99 00:06:09,680 --> 00:06:14,719 Speaker 1: really derail the case pretty significantly. Without Trump as a defendant, 100 00:06:14,960 --> 00:06:17,080 Speaker 1: it's unlikely that they would be able to get some 101 00:06:17,160 --> 00:06:19,640 Speaker 1: of the discovery that they seek, although it's not clear 102 00:06:19,680 --> 00:06:23,479 Speaker 1: how they would. But it's significant too because under the 103 00:06:23,520 --> 00:06:26,919 Speaker 1: Federal Tort Claims Act, defamation is a suit that you 104 00:06:26,960 --> 00:06:30,960 Speaker 1: can't file against the government. So it's possible that if 105 00:06:31,000 --> 00:06:33,840 Speaker 1: the case is allowed to proceed in federal court, and 106 00:06:34,000 --> 00:06:36,440 Speaker 1: there hasn't been any determination from a judge on that, 107 00:06:36,800 --> 00:06:38,920 Speaker 1: but if it is allowed to proceed, that it's it's 108 00:06:38,960 --> 00:06:41,919 Speaker 1: likely that the defamation case simply wouldn't even be allowed 109 00:06:41,960 --> 00:06:44,080 Speaker 1: to proceed. That it could still the end of the case, 110 00:06:44,560 --> 00:06:48,880 Speaker 1: it's unclear exactly what the ramtations would be there. Now. 111 00:06:49,120 --> 00:06:53,960 Speaker 1: Attorney General bar has already made a comment about this. 112 00:06:54,320 --> 00:06:57,920 Speaker 1: He said this was a normal application of the law. 113 00:06:58,080 --> 00:07:01,080 Speaker 1: Tell us a little bit about what his defense for 114 00:07:01,160 --> 00:07:05,960 Speaker 1: the Justice Department stepping in was. Well, you know, he 115 00:07:06,080 --> 00:07:09,279 Speaker 1: argues about the Federal Court Claims Act that you know, 116 00:07:09,400 --> 00:07:12,880 Speaker 1: essentially any federal employee is going to get the same 117 00:07:12,920 --> 00:07:16,800 Speaker 1: type of treatment here. Um that if they are accused 118 00:07:16,800 --> 00:07:20,600 Speaker 1: of a particular wrongdoing, UM that relates to their official 119 00:07:20,680 --> 00:07:23,960 Speaker 1: duties as a government employee. Um that the law you know, 120 00:07:24,000 --> 00:07:26,640 Speaker 1: there was amended back in the eighties to protect federal 121 00:07:26,680 --> 00:07:30,440 Speaker 1: government employees from these types of lawsuits. I suppose that 122 00:07:30,400 --> 00:07:33,320 Speaker 1: it's an example could be, you know, suing someone at 123 00:07:33,320 --> 00:07:36,480 Speaker 1: the I R S individually for something that they did 124 00:07:36,560 --> 00:07:38,640 Speaker 1: with an audit or something. You know that it's going 125 00:07:38,720 --> 00:07:41,560 Speaker 1: to be the agency, uh that is going to be 126 00:07:41,800 --> 00:07:44,520 Speaker 1: standing in as a defendant in cases that are allowed 127 00:07:44,520 --> 00:07:48,880 Speaker 1: to actually be filed against these agencies. Uh. So you know, 128 00:07:49,000 --> 00:07:55,320 Speaker 1: clearly the pushback on the Attorney General here, um is that, um, 129 00:07:55,360 --> 00:07:57,440 Speaker 1: you know, is this really was this really in his 130 00:07:57,800 --> 00:08:03,800 Speaker 1: the president's official capacity making this denial um against Carol's 131 00:08:03,920 --> 00:08:07,320 Speaker 1: claim and saying the other things that that he said 132 00:08:07,360 --> 00:08:09,880 Speaker 1: about her, that she was just trying to profit from 133 00:08:09,880 --> 00:08:13,160 Speaker 1: her book, and and uh that she was she wasn't 134 00:08:13,280 --> 00:08:17,280 Speaker 1: his type, and things like this. Um. So it also 135 00:08:18,040 --> 00:08:21,560 Speaker 1: canswer question whether or not the underlying claims. As you mentioned, 136 00:08:21,560 --> 00:08:25,280 Speaker 1: this is a defamation suit, but she would be winning 137 00:08:25,360 --> 00:08:27,720 Speaker 1: or losing this case based on being able able to 138 00:08:27,760 --> 00:08:33,079 Speaker 1: prove the alleged attack occurred. So it really is about claims. Um. 139 00:08:33,160 --> 00:08:35,680 Speaker 1: The underlying claims here are pretty old and of course 140 00:08:35,720 --> 00:08:39,480 Speaker 1: predate his presidency. So I think there's there's an argument 141 00:08:39,480 --> 00:08:42,240 Speaker 1: that's going to be made that regardless of the fact 142 00:08:42,280 --> 00:08:46,680 Speaker 1: that the defamation, the alleged defamation occurred, Waltrump is president, 143 00:08:47,160 --> 00:08:50,520 Speaker 1: that it's not his offistical capacity, and that the case 144 00:08:50,520 --> 00:08:54,079 Speaker 1: should go back to state court. So Carol's lawyer said 145 00:08:54,400 --> 00:08:57,040 Speaker 1: that this was a shocking abuse of power, that she'll 146 00:08:57,120 --> 00:09:01,120 Speaker 1: fight it. What's the process ahead, Well, you know, I 147 00:09:01,120 --> 00:09:05,120 Speaker 1: I've spoken with her, and it's not exactly clear what 148 00:09:05,640 --> 00:09:09,320 Speaker 1: her strategy is going to be beyond filing at some 149 00:09:09,400 --> 00:09:13,760 Speaker 1: point soon a brief that will I imagine substantially pushed 150 00:09:13,760 --> 00:09:17,480 Speaker 1: back against this argument and try to have the case 151 00:09:17,800 --> 00:09:21,200 Speaker 1: moved back to state court. And it's possible that the 152 00:09:21,280 --> 00:09:24,640 Speaker 1: judge in the case could simply say, Nodes, I don't 153 00:09:24,640 --> 00:09:28,199 Speaker 1: accept this. It's awesome likely that that decision could be appealed. 154 00:09:28,240 --> 00:09:30,920 Speaker 1: But at any rate, Miss Carol's lawyer try to get 155 00:09:30,920 --> 00:09:33,240 Speaker 1: this case and moved back to state court where it's 156 00:09:33,320 --> 00:09:36,880 Speaker 1: on a fast track for discovery. That's been sold for 157 00:09:37,040 --> 00:09:42,160 Speaker 1: months because of President Trump's various court maneuvers, and of course, 158 00:09:42,320 --> 00:09:45,640 Speaker 1: what they're really looking to get here, what carold legal 159 00:09:45,679 --> 00:09:48,880 Speaker 1: team really wants here is a DNA sample from the President. 160 00:09:49,320 --> 00:09:51,520 Speaker 1: They made that clear months ago in court filings in 161 00:09:51,600 --> 00:09:54,920 Speaker 1: state court that Miss Carol has saved the dress and 162 00:09:54,960 --> 00:09:57,440 Speaker 1: the shoes that she wore during this alleged attack all 163 00:09:57,480 --> 00:10:01,360 Speaker 1: these years, that they have DNA sample from the item 164 00:10:01,600 --> 00:10:04,240 Speaker 1: and they want to compare them to the President's DNA. 165 00:10:04,760 --> 00:10:07,640 Speaker 1: So that's one thing that they're going to attempt to get. 166 00:10:07,720 --> 00:10:09,960 Speaker 1: But that's what I think the big site will be over. 167 00:10:10,000 --> 00:10:13,200 Speaker 1: And also it's got position of the President and other 168 00:10:13,240 --> 00:10:15,640 Speaker 1: people involved, because it's the people that Miss Harold told 169 00:10:15,679 --> 00:10:18,360 Speaker 1: at the time. So they want all this to start 170 00:10:18,400 --> 00:10:21,360 Speaker 1: moving forward as quickly as possible. Uh. And of course 171 00:10:21,679 --> 00:10:24,160 Speaker 1: the President would love to to slow this all down 172 00:10:24,160 --> 00:10:26,800 Speaker 1: and get it thrown out, especially with the election coming up. 173 00:10:27,080 --> 00:10:30,320 Speaker 1: So tell us about Judge Lewis Kaplan, the federal judge 174 00:10:30,320 --> 00:10:33,760 Speaker 1: who is going to be hearing this case. He is 175 00:10:33,840 --> 00:10:37,439 Speaker 1: the chief judge there at the Southern District of New York. UM. 176 00:10:37,600 --> 00:10:44,640 Speaker 1: He was appointed to the bench um in by Bill Clinton. Uh. 177 00:10:44,720 --> 00:10:48,440 Speaker 1: He has worked on quite a few big cases there 178 00:10:48,960 --> 00:10:52,320 Speaker 1: in sdn Y. Not not a lot of huge political cases, 179 00:10:52,360 --> 00:10:57,360 Speaker 1: but certainly big cases UM involving terrorists, white collar crime, 180 00:10:57,480 --> 00:11:01,600 Speaker 1: things like that legal expert that you've talked to are 181 00:11:01,640 --> 00:11:06,160 Speaker 1: they skeptical that the Justice Department will be able to 182 00:11:06,280 --> 00:11:08,920 Speaker 1: intervene here and that you know, the judge will say 183 00:11:08,960 --> 00:11:12,360 Speaker 1: that the President was acting in his official capacity when 184 00:11:12,360 --> 00:11:17,440 Speaker 1: he denied these personal statements. Yeah, there is skepticism here. 185 00:11:17,480 --> 00:11:20,600 Speaker 1: I think that a lot of people will pretty surprised. 186 00:11:20,720 --> 00:11:22,800 Speaker 1: President Trump has come up with a lot of sort 187 00:11:22,800 --> 00:11:26,000 Speaker 1: of novel, surprising legal arguments in all the various cases 188 00:11:26,000 --> 00:11:28,720 Speaker 1: that he's been involved in over the past several years. 189 00:11:28,760 --> 00:11:32,840 Speaker 1: So surprising moves like this are not uncommon. But even so, this, 190 00:11:33,400 --> 00:11:37,000 Speaker 1: this particular one, seemed to surprise a lot of people because, 191 00:11:37,120 --> 00:11:40,400 Speaker 1: as much as Attorney General bar might say otherwise, it 192 00:11:40,480 --> 00:11:43,440 Speaker 1: does seem to be an unusual use of this law 193 00:11:43,880 --> 00:11:48,360 Speaker 1: that would protect federal employees from litigation. Going back to 194 00:11:48,480 --> 00:11:51,560 Speaker 1: the argument, the analogy I made earlier, with an I 195 00:11:51,679 --> 00:11:55,319 Speaker 1: R S auditor being sued or something like that, Um, 196 00:11:55,360 --> 00:11:57,400 Speaker 1: you know, would the government would the I R S 197 00:11:57,440 --> 00:11:59,400 Speaker 1: want to step in and be a defendant for that 198 00:11:59,480 --> 00:12:04,280 Speaker 1: employee if that employee had been accused of sexual assault 199 00:12:04,480 --> 00:12:08,560 Speaker 1: and defamation. You know, it's it's unclear. I don't I 200 00:12:08,559 --> 00:12:10,760 Speaker 1: don't know for sure that there hasn't been a case 201 00:12:10,880 --> 00:12:13,840 Speaker 1: like that, but but the legal experts seemed to be 202 00:12:13,880 --> 00:12:17,000 Speaker 1: pretty surprised and a bit dubious about it. And I 203 00:12:17,040 --> 00:12:20,360 Speaker 1: think that's probably the biggest sign that it's an unusual move, 204 00:12:21,120 --> 00:12:24,400 Speaker 1: is that Miss Carroll's lawyer, Robbie Kaplan, who was so 205 00:12:24,600 --> 00:12:27,000 Speaker 1: surprised by it and taken off guard, um, because she 206 00:12:27,440 --> 00:12:31,480 Speaker 1: would have I'm sure anticipated, um, you know, any any 207 00:12:31,679 --> 00:12:34,800 Speaker 1: move by the president that would have been um, a 208 00:12:34,840 --> 00:12:38,960 Speaker 1: little bit more standards. And also, if this is the case, 209 00:12:39,559 --> 00:12:42,679 Speaker 1: then why didn't the Justice Department step in way back 210 00:12:43,040 --> 00:12:45,960 Speaker 1: when the suit was filed. Why was his personal attorney 211 00:12:46,000 --> 00:12:50,840 Speaker 1: defending it all this time? It doesn't really make much sense. Well, 212 00:12:50,920 --> 00:12:55,440 Speaker 1: that's a very good point. Um. I don't know what 213 00:12:55,600 --> 00:12:57,439 Speaker 1: to say on that, if I don't want to put 214 00:12:57,440 --> 00:12:59,880 Speaker 1: you in a position of defending suit. I just wanted 215 00:12:59,920 --> 00:13:02,560 Speaker 1: a point out that it's it just seems odd. The 216 00:13:02,640 --> 00:13:07,160 Speaker 1: timing seems odd. Yes, the timing is surprising, and of 217 00:13:07,160 --> 00:13:10,680 Speaker 1: course Carol's lawyer points out that the timing is a 218 00:13:10,679 --> 00:13:14,760 Speaker 1: little too convenient, that it's clearly um. She argues a 219 00:13:14,800 --> 00:13:20,079 Speaker 1: delay tactic, a desperate delay tactic to avoid this discovery 220 00:13:20,240 --> 00:13:23,480 Speaker 1: that they're seeking. Now that the motion to dismiss has 221 00:13:23,520 --> 00:13:26,719 Speaker 1: been denied. Um. You know, clearly there are a lot 222 00:13:26,760 --> 00:13:29,440 Speaker 1: of things on the president's mind right now that he 223 00:13:29,480 --> 00:13:32,360 Speaker 1: has to deal with, and I'm sure that he doesn't 224 00:13:32,440 --> 00:13:35,760 Speaker 1: want to deal with this case. But the fact is is, Um, 225 00:13:35,800 --> 00:13:39,520 Speaker 1: the discovery is sounds like it's a pretty simple thing 226 00:13:39,960 --> 00:13:43,160 Speaker 1: to to get done. Um. They're not asking for a 227 00:13:43,200 --> 00:13:49,280 Speaker 1: long deposition. Um. The DNA h A test is just 228 00:13:49,360 --> 00:13:52,880 Speaker 1: with a swab that takes you know, a few seconds. Um, 229 00:13:53,080 --> 00:13:56,840 Speaker 1: probably not nearly as intrusive as a coronavirus test. Uh. 230 00:13:56,920 --> 00:14:01,319 Speaker 1: So it really is going to be different cult for um. 231 00:14:01,360 --> 00:14:05,320 Speaker 1: Pleasant some to argue that this case is too troublesome 232 00:14:05,360 --> 00:14:07,680 Speaker 1: for him. Um, if he tries to make that that 233 00:14:07,800 --> 00:14:11,439 Speaker 1: argument again. But uh if the timing does seem to 234 00:14:11,480 --> 00:14:16,000 Speaker 1: suggest a very last ditch effort. So, Eric, it seems 235 00:14:16,080 --> 00:14:20,360 Speaker 1: like with this delay now where it's going to be 236 00:14:20,600 --> 00:14:24,040 Speaker 1: decided in federal court and then perhaps go back to 237 00:14:24,080 --> 00:14:28,000 Speaker 1: state court, it seems like neither the deposition nor the 238 00:14:28,120 --> 00:14:32,840 Speaker 1: DNA sample will happen before the November election, no matter 239 00:14:32,880 --> 00:14:36,800 Speaker 1: what the judge rules. I think you're right. I think 240 00:14:36,880 --> 00:14:41,880 Speaker 1: that this move has effectively delayed the case no matter 241 00:14:42,240 --> 00:14:46,520 Speaker 1: what pretty significantly. UM. I know that when the case 242 00:14:46,680 --> 00:14:51,040 Speaker 1: was proceeding in state courts, Uh, that the schedules that 243 00:14:51,080 --> 00:14:53,760 Speaker 1: they were sort of looking at and proposing for the 244 00:14:53,840 --> 00:14:57,200 Speaker 1: depositions and and and the DNA samples and things like 245 00:14:57,240 --> 00:15:01,480 Speaker 1: that were pretty uh, we're pretty are off a while 246 00:15:01,520 --> 00:15:05,320 Speaker 1: ago when they were first envisioned. So I guess the 247 00:15:05,400 --> 00:15:08,120 Speaker 1: only way that it could proceed more quickly is if 248 00:15:09,000 --> 00:15:12,000 Speaker 1: the judge very quickly throws to this out the federal court, 249 00:15:12,320 --> 00:15:15,960 Speaker 1: and if I'm an appeal, any kind of appeal goes quickly, 250 00:15:16,360 --> 00:15:19,080 Speaker 1: and then perhaps the judge and state court might say, look, 251 00:15:19,240 --> 00:15:22,480 Speaker 1: this is a delay tactic. I'm not impressed. I'm putting 252 00:15:22,480 --> 00:15:25,800 Speaker 1: you on an expedited discovery schedule here. But I don't 253 00:15:25,840 --> 00:15:28,280 Speaker 1: know that any of that is very likely. Courts they're 254 00:15:28,360 --> 00:15:32,080 Speaker 1: usually pretty um, you know, conservative and and things like this. 255 00:15:32,120 --> 00:15:34,160 Speaker 1: But I gets thrown out quickly, But that doesn't mean 256 00:15:34,160 --> 00:15:35,840 Speaker 1: it peel is going to happen and quickly, and that 257 00:15:36,160 --> 00:15:38,760 Speaker 1: discovery is going to be ordered quickly, because of course, 258 00:15:38,920 --> 00:15:40,840 Speaker 1: judges and courts are not gonna want to look like 259 00:15:40,880 --> 00:15:45,200 Speaker 1: they're trying to hurt Trump in his re election with 260 00:15:45,360 --> 00:15:48,400 Speaker 1: any kind of timing here. One thing we have not 261 00:15:48,520 --> 00:15:52,920 Speaker 1: mentioned is that taxpayers would be on the hook for 262 00:15:53,000 --> 00:15:58,640 Speaker 1: any damages if the Justice Department represents Trump under the 263 00:15:58,800 --> 00:16:02,880 Speaker 1: federal tort claims to explain explain that, yeo, And of 264 00:16:02,880 --> 00:16:05,320 Speaker 1: course they would also be Texpers would also be on 265 00:16:05,320 --> 00:16:08,000 Speaker 1: the hook here for the legal feats, essentially because we'd 266 00:16:08,000 --> 00:16:13,240 Speaker 1: have Justice Department attorneys defending the president here. So I'm 267 00:16:13,280 --> 00:16:16,360 Speaker 1: not sure if there are particular limits or restrictions on 268 00:16:16,440 --> 00:16:19,600 Speaker 1: damages um as a result of cases like this being 269 00:16:19,720 --> 00:16:22,920 Speaker 1: moved to federal courts. There there may be, And frankly, 270 00:16:22,960 --> 00:16:26,040 Speaker 1: I don't see that Ms Harold is focused too much 271 00:16:26,440 --> 00:16:29,840 Speaker 1: on damages here. She really seems to be wanting her 272 00:16:29,920 --> 00:16:33,080 Speaker 1: her day in court to get to trial and essentially prevail. 273 00:16:33,600 --> 00:16:39,480 Speaker 1: Thanks sah, that's Bloomberg Legal reporter Eric Lawson previously on 274 00:16:39,600 --> 00:16:44,320 Speaker 1: in the Dark. John Johnson is a conviction and he said, 275 00:16:44,320 --> 00:16:48,720 Speaker 1: I'm going to play no Texas and Guinea. Do you 276 00:16:48,760 --> 00:16:52,680 Speaker 1: remember like telling them like Curtis for feeling No, I 277 00:16:52,720 --> 00:16:55,200 Speaker 1: did not say that. I don't know about the shoes, 278 00:16:55,280 --> 00:16:58,480 Speaker 1: no murder, no nitty. So are you confidently if you 279 00:16:58,560 --> 00:17:03,560 Speaker 1: had the right person that Curtis ours is kiltingly? Curtis 280 00:17:03,560 --> 00:17:07,040 Speaker 1: Flowers was tried six times for the same crime, a 281 00:17:07,160 --> 00:17:12,840 Speaker 1: quadruple murder in Mississippi. In Flowers, a black man, maintained 282 00:17:12,880 --> 00:17:16,560 Speaker 1: his innocence for twenty two years as mostly white juries 283 00:17:16,640 --> 00:17:20,560 Speaker 1: hung twice and convicted him four times, but those convictions 284 00:17:20,600 --> 00:17:24,080 Speaker 1: were reversed on appeal. The latest reversal from the Supreme 285 00:17:24,160 --> 00:17:28,760 Speaker 1: Court in and last week, the prosecutor decided not to 286 00:17:28,800 --> 00:17:32,840 Speaker 1: try Flowers for an unprecedented seventh time, joining me as 287 00:17:32,920 --> 00:17:36,679 Speaker 1: Jordan Reuben Bloomberg Law editor Jordan, what stood out in 288 00:17:36,800 --> 00:17:40,360 Speaker 1: flowers six trials? Well, the main thing that was pointed 289 00:17:40,359 --> 00:17:44,560 Speaker 1: out in the Supreme Court's eventual decision in Curtis Flowers 290 00:17:44,760 --> 00:17:48,600 Speaker 1: favors that there was a pattern by the local district attorney, 291 00:17:48,680 --> 00:17:53,640 Speaker 1: Doug Evans, of trying to keep prospective black jurors off 292 00:17:53,640 --> 00:17:55,560 Speaker 1: of the jury. So that was a pattern that had 293 00:17:55,600 --> 00:17:58,639 Speaker 1: emerged over the years in all of those trials. So 294 00:17:58,720 --> 00:18:02,320 Speaker 1: after two decades, the prosecutor decided to drop the charges 295 00:18:02,359 --> 00:18:05,640 Speaker 1: against Flowers. Was it because of the Supreme Court decision? 296 00:18:05,960 --> 00:18:08,760 Speaker 1: I think it certainly was. And now it's important to 297 00:18:08,840 --> 00:18:12,480 Speaker 1: note that after the Supreme Court's decision last year, the 298 00:18:12,520 --> 00:18:16,280 Speaker 1: case was remanded back to that same District Attorney Doug Evans, 299 00:18:16,560 --> 00:18:19,560 Speaker 1: and the prospect of a seventh trial loomed even then, 300 00:18:19,640 --> 00:18:23,280 Speaker 1: because all the Supreme Court's decision did was really put 301 00:18:23,320 --> 00:18:27,159 Speaker 1: the indictment back live, as it were, and with Curtis 302 00:18:27,160 --> 00:18:31,160 Speaker 1: Flowers facing another potential trial. But what happened was Doug 303 00:18:31,200 --> 00:18:34,160 Speaker 1: Evans actually refused from the case and then it went 304 00:18:34,200 --> 00:18:38,119 Speaker 1: to the new state Attorney General, Lynn Fitch, whose office 305 00:18:38,200 --> 00:18:43,000 Speaker 1: undertook an independent review of the case, after which Fitch's 306 00:18:43,040 --> 00:18:46,320 Speaker 1: office decided to move to dismiss the indictment and that 307 00:18:46,480 --> 00:18:50,640 Speaker 1: was that. So why did Fitch think that the case 308 00:18:50,640 --> 00:18:53,760 Speaker 1: shouldn't be tried again? Well, one of the things that 309 00:18:53,880 --> 00:18:56,960 Speaker 1: the Attorney General pointed out in the motion was that 310 00:18:57,400 --> 00:19:01,199 Speaker 1: at least at this point in time, there's no what 311 00:19:01,280 --> 00:19:05,800 Speaker 1: they referred to as any key prosecution witness that incriminates Flowers, 312 00:19:05,840 --> 00:19:10,440 Speaker 1: who's alive and available and hasn't had multiple conflicting statements 313 00:19:10,520 --> 00:19:13,640 Speaker 1: in the record. So it wasn't so much a direct 314 00:19:13,960 --> 00:19:17,520 Speaker 1: exoneration of Flowers, who I should point out has maintained 315 00:19:17,560 --> 00:19:20,679 Speaker 1: his innocence throughout this process, But in some respect it 316 00:19:20,800 --> 00:19:23,280 Speaker 1: was put more in terms of we just don't have 317 00:19:23,440 --> 00:19:27,280 Speaker 1: enough evidence to go forward, although the Attorney General's motions 318 00:19:27,280 --> 00:19:30,240 Speaker 1: concluded by using the phrase quote in the interest of 319 00:19:30,320 --> 00:19:34,320 Speaker 1: justice end quote, that's why they weren't seeking an unprecedented 320 00:19:34,600 --> 00:19:37,720 Speaker 1: seventh trials Mr. Flowers, as they put it, during the 321 00:19:37,720 --> 00:19:43,000 Speaker 1: six trials, juries were either hung or Flowers was convicted. 322 00:19:43,280 --> 00:19:46,159 Speaker 1: That's right. So it really was over the course of 323 00:19:46,400 --> 00:19:50,639 Speaker 1: two decades, a series of remarkable numbers of trials, really 324 00:19:50,760 --> 00:19:55,040 Speaker 1: an unprecedented situation and really just notable how there was 325 00:19:55,200 --> 00:19:59,280 Speaker 1: continued what's essentially been found toive in misconduct by the 326 00:19:59,320 --> 00:20:03,280 Speaker 1: prosecutor and the case, most notably in terms of racial 327 00:20:03,280 --> 00:20:07,720 Speaker 1: discrimination in the jury process. Jordan explained that concept of 328 00:20:08,200 --> 00:20:14,440 Speaker 1: racial discrimination in choosing jurors. Sure, so lawyers can't discriminate 329 00:20:14,520 --> 00:20:18,439 Speaker 1: against potential jurors based on race. And now that doesn't 330 00:20:18,560 --> 00:20:22,800 Speaker 1: mean that there aren't racial disparities injuries that wind up 331 00:20:22,960 --> 00:20:27,080 Speaker 1: being essentially legally okay by courts, because sometimes what can 332 00:20:27,119 --> 00:20:31,520 Speaker 1: happen is a prosecutors say, if they're challenged and accused 333 00:20:31,640 --> 00:20:35,439 Speaker 1: of being racially discriminatory and how they choose jurors, they 334 00:20:35,440 --> 00:20:40,280 Speaker 1: can offer what's called a race neutral reason for doing so. However, 335 00:20:40,760 --> 00:20:43,640 Speaker 1: essentially what happened in the Supreme Court case is that 336 00:20:43,800 --> 00:20:47,200 Speaker 1: the justices took a look at this pattern of evans 337 00:20:47,240 --> 00:20:49,960 Speaker 1: over the years and said that whatever reasons were given, 338 00:20:50,320 --> 00:20:52,960 Speaker 1: those really just aren't good enough and this was too 339 00:20:53,280 --> 00:20:57,119 Speaker 1: racially discriminatory to bear under the Constitution. How much of 340 00:20:57,160 --> 00:21:00,720 Speaker 1: this dismissal might be the result of the national attention 341 00:21:01,280 --> 00:21:05,479 Speaker 1: Flowers got from the A p M Reports podcast In 342 00:21:05,520 --> 00:21:07,840 Speaker 1: the Dark? Oh, I think that that was huge and 343 00:21:07,840 --> 00:21:12,199 Speaker 1: it's really a testament to the investigatory journalism in that 344 00:21:12,320 --> 00:21:15,000 Speaker 1: ap M Reports podcast, because that's really what put the 345 00:21:15,000 --> 00:21:17,120 Speaker 1: case on the map. Of course, you know, you never 346 00:21:17,240 --> 00:21:20,560 Speaker 1: know what will happen in a counter factual scenario, but 347 00:21:20,960 --> 00:21:23,240 Speaker 1: I'm pretty confident in saying that that's a big reason 348 00:21:23,320 --> 00:21:27,000 Speaker 1: for why Flowers is not on death row. So finally, 349 00:21:27,240 --> 00:21:32,439 Speaker 1: did that podcast attempt to exonerate Flowers? Um, that's a 350 00:21:32,440 --> 00:21:34,919 Speaker 1: good question, you know, I think that that is a 351 00:21:34,960 --> 00:21:37,399 Speaker 1: fair way to look at it. And going back to 352 00:21:37,760 --> 00:21:40,480 Speaker 1: something that I mentioned before that they also even went 353 00:21:40,560 --> 00:21:44,000 Speaker 1: so far as to identify a potential alternate suspects, And 354 00:21:44,080 --> 00:21:47,720 Speaker 1: so really I think all those things taken together are 355 00:21:47,840 --> 00:21:51,560 Speaker 1: something that people look at as pointing to why they've 356 00:21:51,600 --> 00:21:54,240 Speaker 1: a masked proof of Flowers innocence and going to the 357 00:21:54,240 --> 00:21:57,080 Speaker 1: point of it's not just important to make sure obviously 358 00:21:57,160 --> 00:22:00,600 Speaker 1: that an innocent person is not evicted, but also in 359 00:22:00,640 --> 00:22:04,320 Speaker 1: a very serious crime, which this was a quadruple homicide, 360 00:22:04,480 --> 00:22:06,679 Speaker 1: you know, you need to be able to bring the 361 00:22:06,760 --> 00:22:09,800 Speaker 1: right person to justice as well. So the podcast certainly 362 00:22:09,880 --> 00:22:13,359 Speaker 1: sought to do that. Thanks Jordan's that's Jordan Reuben, Bloomberg 363 00:22:13,440 --> 00:22:15,520 Speaker 1: Law Editor, and that's it for this edition of The 364 00:22:15,520 --> 00:22:19,200 Speaker 1: Bloomberg Law Show. I'm June Grosso. Thanks so much for listening, 365 00:22:19,520 --> 00:22:21,560 Speaker 1: and remember to tune to The Bloomberg Law Show every 366 00:22:21,560 --> 00:22:24,440 Speaker 1: weeknight at ten pm Eastern right here on Bloomberg Radio.