1 00:00:03,200 --> 00:00:08,320 Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio. 2 00:00:10,200 --> 00:00:14,240 Speaker 2: Prosecutors have brought obstruction charges against more than three hundred 3 00:00:14,240 --> 00:00:18,320 Speaker 2: and fifty defendants in the Capitol Riot cases, including two 4 00:00:18,440 --> 00:00:21,759 Speaker 2: counts against Donald Trump for his efforts to overturn his 5 00:00:21,880 --> 00:00:25,759 Speaker 2: election loss in twenty twenty. But during oral arguments today, 6 00:00:26,040 --> 00:00:31,600 Speaker 2: several Conservative Supreme Court justices like Neil Gorsuch express skepticism 7 00:00:31,680 --> 00:00:34,760 Speaker 2: about the potential scope of the charge and the kinds 8 00:00:34,800 --> 00:00:36,920 Speaker 2: of conduct it could criminalize. 9 00:00:37,479 --> 00:00:42,040 Speaker 3: Would a sit in that disrupts a trial or access 10 00:00:42,040 --> 00:00:45,960 Speaker 3: to a federal courthouse qualify? Would a heckler in today's 11 00:00:46,040 --> 00:00:49,559 Speaker 3: audience qualify? Or at the State of the Union address, 12 00:00:50,440 --> 00:00:56,800 Speaker 3: would pulling a fire alarm before a vote qualify? For 13 00:00:56,800 --> 00:00:58,200 Speaker 3: twenty years in federal prison. 14 00:00:58,680 --> 00:01:02,600 Speaker 2: The case involves Joe Joseph Fischer, a former Pennsylvania police 15 00:01:02,600 --> 00:01:08,000 Speaker 2: officer and January sixth defendant, who argues the felony obstruction charge, 16 00:01:08,240 --> 00:01:12,000 Speaker 2: which carries a prison sentence of twenty years, was intended 17 00:01:12,040 --> 00:01:17,800 Speaker 2: to prevent evidence tampering, not insurrection. Justice Clarence Thomas, whose 18 00:01:17,840 --> 00:01:21,039 Speaker 2: wife Ginny is a conservative activist, who was at the 19 00:01:21,160 --> 00:01:25,600 Speaker 2: rally on January sixth, asked the US Solicitor General, Elizabeth 20 00:01:25,600 --> 00:01:29,560 Speaker 2: pre Lagger, if prosecutors have ever used this statute before 21 00:01:29,800 --> 00:01:31,920 Speaker 2: in response to violent protests. 22 00:01:32,720 --> 00:01:35,280 Speaker 4: So have you enforced it in that manner? 23 00:01:35,640 --> 00:01:37,959 Speaker 1: We have enforced it in a variety of prosecutions that 24 00:01:38,040 --> 00:01:40,480 Speaker 1: don't focus on evidence tampering. Now, I can't give you 25 00:01:40,560 --> 00:01:43,360 Speaker 1: an example of enforcing it in a situation where people 26 00:01:43,400 --> 00:01:45,960 Speaker 1: have violently stormed a building in order to prevent an 27 00:01:45,959 --> 00:01:48,880 Speaker 1: official preceding a specified one from occurring, with all of 28 00:01:48,880 --> 00:01:52,720 Speaker 1: the elements like intent to obstruct, knowledge of the preceding, 29 00:01:53,080 --> 00:01:55,320 Speaker 1: of having the corruptly mens raa. But that's just because 30 00:01:55,320 --> 00:01:57,920 Speaker 1: I'm not aware of that circumstance ever happening prior to 31 00:01:58,000 --> 00:01:59,320 Speaker 1: January sixth. 32 00:01:59,400 --> 00:02:03,920 Speaker 2: Joining former federal prosecutor Jessica Roth, a professor at Cardozo 33 00:02:04,000 --> 00:02:07,240 Speaker 2: Law School, Jessica explain what the issue is here. 34 00:02:07,840 --> 00:02:12,639 Speaker 5: So the issue here is how to interpret the obstruction 35 00:02:12,760 --> 00:02:15,600 Speaker 5: of an official preceding statute, which is one of a 36 00:02:15,680 --> 00:02:20,400 Speaker 5: series of statutes that address obstruction of justice in various forms. 37 00:02:20,600 --> 00:02:23,560 Speaker 5: It's a particular provision that was enacted in two thousand 38 00:02:23,600 --> 00:02:27,240 Speaker 5: and two as part of the Sarbanes Oxley Act following 39 00:02:27,280 --> 00:02:31,280 Speaker 5: the Enron scandal and the revelation of significant accounting frauds 40 00:02:31,560 --> 00:02:34,720 Speaker 5: on the part of the accountants for Enron, and the 41 00:02:34,760 --> 00:02:39,760 Speaker 5: revelation that although those involved in the shredding of documents 42 00:02:39,800 --> 00:02:43,920 Speaker 5: related to Enron were prosecuted, that there was essentially a 43 00:02:44,160 --> 00:02:48,280 Speaker 5: gap in the obstruction of justice statutes because it was 44 00:02:48,320 --> 00:02:53,120 Speaker 5: not possible to charge somebody for destroying evidence essentially on 45 00:02:53,200 --> 00:02:58,080 Speaker 5: their own. The statutes required that a person direct or 46 00:02:58,400 --> 00:03:03,000 Speaker 5: somehow get another person to destroy documents. And so it 47 00:03:03,080 --> 00:03:05,520 Speaker 5: wasn't that there was so much a problem charging in 48 00:03:05,600 --> 00:03:08,760 Speaker 5: the Enron case, but that it was identified that this 49 00:03:08,880 --> 00:03:11,520 Speaker 5: could be a problem in future cases. And so the 50 00:03:11,560 --> 00:03:15,079 Speaker 5: particular statute that was charged here against mister Fisher, that's 51 00:03:15,120 --> 00:03:18,760 Speaker 5: been used against over three hundred defendants who are charged 52 00:03:18,760 --> 00:03:21,880 Speaker 5: arising out of the January sixth insurrection, and that also 53 00:03:21,960 --> 00:03:24,080 Speaker 5: is the basis for two of the charges against Donald 54 00:03:24,080 --> 00:03:27,040 Speaker 5: Trump and the January sixth case against him. And the 55 00:03:27,120 --> 00:03:30,440 Speaker 5: question is whether or not that statute can be used 56 00:03:30,639 --> 00:03:34,240 Speaker 5: to charge a person for obstructing and a proceeding, including 57 00:03:34,280 --> 00:03:38,920 Speaker 5: a proceeding of Congress, where the destruction of evidence or 58 00:03:38,960 --> 00:03:42,120 Speaker 5: tampering with evidence per se is not part of the 59 00:03:42,160 --> 00:03:43,120 Speaker 5: factual allegation. 60 00:03:43,880 --> 00:03:47,280 Speaker 2: Did it seem during the oral arguments that the conservative 61 00:03:47,520 --> 00:03:52,120 Speaker 2: justices were skeptical about the Justice Department using the obstruction 62 00:03:52,400 --> 00:03:56,200 Speaker 2: charge against Fisher and the other January sixth defendants. 63 00:03:56,680 --> 00:04:00,000 Speaker 5: There were clearly some justices who were skeptical of the charge. 64 00:04:00,160 --> 00:04:02,240 Speaker 5: I would say Justice Alito was the one who seemed 65 00:04:02,280 --> 00:04:07,000 Speaker 5: most clearly skeptical. Chief Justice Roberts also expressed some concerns, 66 00:04:07,040 --> 00:04:10,280 Speaker 5: although he did not ask that many questions. Justice Gorschitz 67 00:04:10,400 --> 00:04:13,680 Speaker 5: had some concerns about the breadth of the potential application 68 00:04:13,760 --> 00:04:16,520 Speaker 5: of the statute if the Court were to rule for 69 00:04:16,600 --> 00:04:19,719 Speaker 5: the government. There were several justices who seemed much more 70 00:04:20,080 --> 00:04:23,839 Speaker 5: inclined to rule for the government, notably Justice Soto, Mayor, 71 00:04:24,360 --> 00:04:28,839 Speaker 5: Justice Kagan, and Justice Katangi Braun Jackson all seemed supportive 72 00:04:28,880 --> 00:04:32,400 Speaker 5: of the interpretation of the statutes that the government was advancing. 73 00:04:32,760 --> 00:04:35,520 Speaker 5: But then there were several justices who seemed sort of 74 00:04:35,560 --> 00:04:39,120 Speaker 5: in the middle and open to persuasion. So I can't 75 00:04:39,160 --> 00:04:41,880 Speaker 5: stay with any confidence how this case is going to 76 00:04:41,880 --> 00:04:42,200 Speaker 5: come out. 77 00:04:42,920 --> 00:04:46,160 Speaker 2: Let's talk about some of the concerns of the very 78 00:04:46,200 --> 00:04:49,560 Speaker 2: conservative justices on the far right of the court. So 79 00:04:49,920 --> 00:04:53,200 Speaker 2: Justice Neil Gorsuch said, would a sit in that disrupts 80 00:04:53,200 --> 00:04:56,480 Speaker 2: a trial or access to a federal courthouse qualify? Would 81 00:04:56,480 --> 00:04:59,000 Speaker 2: a heckler in today's audience qualify? Or a State of 82 00:04:59,040 --> 00:05:02,240 Speaker 2: the Union address us what pulling a fire alarm before 83 00:05:02,240 --> 00:05:05,479 Speaker 2: a vote referring to an incident in Congress that happened 84 00:05:05,520 --> 00:05:09,480 Speaker 2: recently qualified for twenty years in federal prison. So they 85 00:05:09,520 --> 00:05:12,480 Speaker 2: were sort of questioning the breath I guess of this. 86 00:05:13,240 --> 00:05:16,720 Speaker 5: A number of the justices asked questions and post hypotheticals 87 00:05:17,080 --> 00:05:20,200 Speaker 5: that really were geared at testing the outer limits of 88 00:05:20,400 --> 00:05:24,000 Speaker 5: the construction of the statutes that the government was advancing, 89 00:05:24,320 --> 00:05:28,039 Speaker 5: and those did include hypothetical protests, for example, or somebody 90 00:05:28,080 --> 00:05:31,640 Speaker 5: in some way disrupting an official proceeding, such as protesting 91 00:05:31,680 --> 00:05:35,279 Speaker 5: outside a courthouse or pulling a fire alarm, And the 92 00:05:35,440 --> 00:05:38,279 Speaker 5: justices wanted to know, well, would the government charge that 93 00:05:38,360 --> 00:05:41,839 Speaker 5: person with obstruction of an official proceeding under its interpretation? 94 00:05:42,200 --> 00:05:45,599 Speaker 5: And this Lister General responded by saying, there are a 95 00:05:45,680 --> 00:05:50,080 Speaker 5: number of safeguards in the statute that would preclude a 96 00:05:50,160 --> 00:05:54,719 Speaker 5: prosecution in those circumstances, even if the court rules our way. 97 00:05:55,000 --> 00:05:59,560 Speaker 5: She said, the obstruction or the impediment of the official 98 00:05:59,560 --> 00:06:02,720 Speaker 5: proceding in a sense, must be more than dominionists. It 99 00:06:02,760 --> 00:06:07,120 Speaker 5: has to actually, in some way that is not insignificant 100 00:06:07,640 --> 00:06:11,880 Speaker 5: impair the proceeding, And so that would be something that 101 00:06:11,960 --> 00:06:15,520 Speaker 5: might preclude a prosecution for somebody who pulled a fire 102 00:06:15,600 --> 00:06:18,400 Speaker 5: alarm that caused a disruption that was only a matter 103 00:06:18,440 --> 00:06:22,880 Speaker 5: of minutes, or that would preclude prosecution of protesters who 104 00:06:23,040 --> 00:06:27,599 Speaker 5: only minimally disrupted a proceeding inside a courthouse, perhaps where 105 00:06:27,600 --> 00:06:29,360 Speaker 5: things had to quiet down for a few minutes, just 106 00:06:29,400 --> 00:06:31,919 Speaker 5: to make sure that the protest was moving on and 107 00:06:32,080 --> 00:06:34,440 Speaker 5: was peaceful. So that was one way in which she 108 00:06:34,520 --> 00:06:37,919 Speaker 5: said the statute would not apply because the actus rays 109 00:06:37,960 --> 00:06:40,080 Speaker 5: in the sense of the impeding, it has to be 110 00:06:40,120 --> 00:06:42,760 Speaker 5: construed in a way that it's more than minimal disruption. 111 00:06:43,240 --> 00:06:45,200 Speaker 5: The second thing she said is that the men's raya 112 00:06:45,320 --> 00:06:47,880 Speaker 5: requirement of the statute, which is that the person has 113 00:06:47,920 --> 00:06:52,000 Speaker 5: to act corruptly, also would preclude prosecution of people in 114 00:06:52,040 --> 00:06:55,719 Speaker 5: some of these hypotheticals, because it would be unlikely that 115 00:06:55,760 --> 00:06:59,039 Speaker 5: the government could prove that those people acted with corrupt intents, 116 00:06:59,080 --> 00:07:02,640 Speaker 5: that is, doing something knowing that it was wrong and 117 00:07:02,800 --> 00:07:06,040 Speaker 5: contrary to law. If people thought, for example, they were 118 00:07:06,080 --> 00:07:09,359 Speaker 5: engaged in peaceful protests protected by the First Amendment. In 119 00:07:09,400 --> 00:07:12,960 Speaker 5: some circumstances, they might be wrong about whether their activity 120 00:07:13,040 --> 00:07:15,520 Speaker 5: was protected by the First Amendment, but their belief that 121 00:07:15,600 --> 00:07:18,560 Speaker 5: it was might preclude a finding that they acted with 122 00:07:18,600 --> 00:07:21,960 Speaker 5: the requisite corrupt intent. So those are two of the 123 00:07:22,000 --> 00:07:25,080 Speaker 5: ways in which she said the statute is limited and 124 00:07:25,160 --> 00:07:28,520 Speaker 5: doesn't need to be limited further by the interpretation advanced 125 00:07:28,520 --> 00:07:31,000 Speaker 5: by Fisher. And one final thing she said is that 126 00:07:31,040 --> 00:07:33,040 Speaker 5: there's a nexus requirement in the statute. 127 00:07:33,120 --> 00:07:33,720 Speaker 4: It has to be the. 128 00:07:33,720 --> 00:07:37,440 Speaker 5: Natural and probable consequence of the defendant's action that it 129 00:07:37,480 --> 00:07:41,440 Speaker 5: actually would more than minimally disrupt the official proceeding in question. 130 00:07:41,880 --> 00:07:43,600 Speaker 5: And so she said, when you add on that third 131 00:07:43,680 --> 00:07:48,800 Speaker 5: element of the nexus, that also would contain the potential 132 00:07:49,160 --> 00:07:52,040 Speaker 5: breadth of the statute. And actually, now I'm realizing there's 133 00:07:52,040 --> 00:07:54,800 Speaker 5: a fourth thing she said, which is, in some circumstances, 134 00:07:55,080 --> 00:07:58,040 Speaker 5: there could be an as applied First Amendment challenge to 135 00:07:58,080 --> 00:08:02,480 Speaker 5: a prosecution in some of the hypotheticals raised by the justices. So, 136 00:08:02,600 --> 00:08:04,880 Speaker 5: in other words, she said, the court could rule in 137 00:08:04,960 --> 00:08:08,200 Speaker 5: the government's favor on its interpretation of the statute as 138 00:08:08,200 --> 00:08:11,920 Speaker 5: applied to official proceedings and not be worried about some 139 00:08:12,080 --> 00:08:15,320 Speaker 5: of the sort of pervaded of horribles that the court 140 00:08:15,360 --> 00:08:16,720 Speaker 5: seem to be concerned about. 141 00:08:16,880 --> 00:08:20,440 Speaker 2: Would that kind of answer satisfy the textualists, I mean 142 00:08:20,520 --> 00:08:24,160 Speaker 2: her saying how the Justice Department won't bring this kind 143 00:08:24,160 --> 00:08:26,080 Speaker 2: of a case and that has to have corrupt attent 144 00:08:26,200 --> 00:08:29,280 Speaker 2: and all that. Would that satisfy the textualists who we're 145 00:08:29,280 --> 00:08:32,200 Speaker 2: just looking at the wording, which seems problematic. 146 00:08:32,480 --> 00:08:37,920 Speaker 5: I think the textual argument interpreting the statute in context, 147 00:08:38,160 --> 00:08:41,079 Speaker 5: I think the argument is actually quite good for the government. 148 00:08:41,320 --> 00:08:44,680 Speaker 5: But the listener General was really emphasizing is that this 149 00:08:44,840 --> 00:08:49,080 Speaker 5: statute fifteen twelve f two, which is the one that 150 00:08:49,160 --> 00:08:55,280 Speaker 5: contains this introductory word or otherwise obstruction official proceeding, is 151 00:08:55,320 --> 00:08:59,800 Speaker 5: a separate statutory paragraph from the section that precedes it, 152 00:09:00,520 --> 00:09:04,480 Speaker 5: which is the one that talks about impairing evidence. And 153 00:09:04,520 --> 00:09:07,520 Speaker 5: she attached great significance to the fact that Congress chose 154 00:09:07,559 --> 00:09:13,360 Speaker 5: to make a separate statutory paragraph for this residual provision otherwise, 155 00:09:13,600 --> 00:09:17,240 Speaker 5: and she said that's what distinguishes this particular statute from 156 00:09:17,360 --> 00:09:21,560 Speaker 5: other statutes where courts have interpreted otherwise or other similars 157 00:09:21,640 --> 00:09:25,920 Speaker 5: of general language as being modified by the specific terms 158 00:09:25,920 --> 00:09:28,199 Speaker 5: that come before it. She said, here, there's really a 159 00:09:28,200 --> 00:09:29,720 Speaker 5: lot of significance in the fact that it is an 160 00:09:29,840 --> 00:09:34,880 Speaker 5: entirely different statutory paragraph, is effectively stand alone, and it's 161 00:09:34,920 --> 00:09:38,560 Speaker 5: meant to address ways of obstructing an official proceeding that 162 00:09:38,640 --> 00:09:42,760 Speaker 5: are not captured by the previous provision C one, which 163 00:09:42,840 --> 00:09:48,160 Speaker 5: is the one about destroying or altering evidence. So there's 164 00:09:48,200 --> 00:09:51,080 Speaker 5: a textual reading that I think is consistent with the 165 00:09:51,080 --> 00:09:55,800 Speaker 5: government's position. The concerns about the application of the statute 166 00:09:55,840 --> 00:09:58,720 Speaker 5: to these very broad set of circumstances I think are 167 00:09:58,840 --> 00:10:02,840 Speaker 5: practical concern and I think the question is is the 168 00:10:02,880 --> 00:10:07,200 Speaker 5: court prepared to let the government's interpretation go forward in 169 00:10:07,240 --> 00:10:11,000 Speaker 5: this case and let these questions of Statuto interpretation on 170 00:10:11,400 --> 00:10:14,600 Speaker 5: the other parts of the statute sort of percolate through 171 00:10:14,640 --> 00:10:17,240 Speaker 5: the courts, so that the Statute is given a narrowing 172 00:10:17,280 --> 00:10:20,760 Speaker 5: interpretation with respect to those other provisions such as what 173 00:10:20,880 --> 00:10:25,320 Speaker 5: actually counts as obstruction, for example, or the men's rea, 174 00:10:25,679 --> 00:10:28,040 Speaker 5: and let that actually be said as a matter of 175 00:10:28,120 --> 00:10:31,120 Speaker 5: law in the courts, as opposed to just trusting the 176 00:10:31,160 --> 00:10:33,360 Speaker 5: government to say, well, this is how we interpret and 177 00:10:33,400 --> 00:10:35,200 Speaker 5: apply the statute. 178 00:10:34,679 --> 00:10:37,839 Speaker 2: A couple of the Justice has seen concerned about the 179 00:10:37,880 --> 00:10:41,960 Speaker 2: stiff possible twenty year sentence, and Justice Brett Kavanaugh brought 180 00:10:42,040 --> 00:10:45,079 Speaker 2: up the six other charges that Fisher is facing. 181 00:10:45,440 --> 00:10:48,440 Speaker 3: Why aren't those six counts good enough? 182 00:10:48,880 --> 00:10:51,080 Speaker 4: Just from the Justice. 183 00:10:50,800 --> 00:10:55,120 Speaker 3: Department's perspective, given that they don't have any of the hurdles. 184 00:10:55,360 --> 00:10:58,280 Speaker 5: I thought the Slicer General's response to that question was 185 00:10:58,320 --> 00:11:02,200 Speaker 5: actually quite compelling. She said, yes, he was charged with 186 00:11:02,320 --> 00:11:05,560 Speaker 5: other counts, but that those other counts did not fully 187 00:11:05,600 --> 00:11:08,720 Speaker 5: capture the harm of his conduct, and that it was 188 00:11:08,760 --> 00:11:13,199 Speaker 5: important that the charges reflect the harm that his conduct 189 00:11:13,320 --> 00:11:19,440 Speaker 5: allegedly inflicted, which was impairing the official proceeding of the 190 00:11:19,480 --> 00:11:26,359 Speaker 5: congressional certification of their electoral College vote. And prosecutors frequently 191 00:11:26,720 --> 00:11:30,439 Speaker 5: charge a number of offenses for one set of conduct 192 00:11:30,640 --> 00:11:34,480 Speaker 5: in order to have the charges fully reflect the seriousness 193 00:11:34,520 --> 00:11:37,720 Speaker 5: and the scope of the conduct. It is important to 194 00:11:38,360 --> 00:11:41,000 Speaker 5: note that Fisher has not actually been tried yet, so 195 00:11:41,000 --> 00:11:43,320 Speaker 5: I should qualify all of this with he is alleged 196 00:11:43,320 --> 00:11:45,600 Speaker 5: to have done all of these things. This charge was 197 00:11:45,640 --> 00:11:48,520 Speaker 5: dismissed by the trial court before it went to trial, 198 00:11:48,840 --> 00:11:51,560 Speaker 5: and then that went up to the DC Circuit Court 199 00:11:51,559 --> 00:11:54,680 Speaker 5: of appeals, and so there's actually a factual dispute among 200 00:11:54,720 --> 00:11:57,240 Speaker 5: the parties about what exactly it is that Fisher did 201 00:11:57,480 --> 00:12:00,560 Speaker 5: and how violent was he at the Capitol. But the 202 00:12:00,600 --> 00:12:03,400 Speaker 5: government is saying that at least as alleged in the indictment, 203 00:12:03,840 --> 00:12:07,720 Speaker 5: he engaged in violence against members of the Capitol police 204 00:12:07,800 --> 00:12:13,240 Speaker 5: and participated in conduct that collectively obstructed the official proceeding, 205 00:12:13,240 --> 00:12:16,120 Speaker 5: which was the counting of the votes coming up. 206 00:12:16,440 --> 00:12:18,760 Speaker 2: If the court rules for Fisher, what happens to the 207 00:12:18,880 --> 00:12:22,760 Speaker 2: charges against Trump? This is Bloomberg. I've been talking to 208 00:12:22,760 --> 00:12:26,800 Speaker 2: Professor Jessica Ront of Cardozo Law School about Supreme Court 209 00:12:26,920 --> 00:12:31,440 Speaker 2: oral arguments today over the obstruction charge levied against hundreds 210 00:12:31,440 --> 00:12:35,760 Speaker 2: of January sixth Capital Riot defendants as well as Donald Trump. 211 00:12:36,200 --> 00:12:40,800 Speaker 2: Many of the conservative justices expressed skepticism about the Justice 212 00:12:40,840 --> 00:12:44,240 Speaker 2: Department's use of the charge in the cases. So a 213 00:12:44,320 --> 00:12:49,800 Speaker 2: couple of the justices, and particularly Clarence Thomas, asked the 214 00:12:49,920 --> 00:12:54,720 Speaker 2: US Listener General Elizabeth Prelager, if prosecutors have ever used 215 00:12:54,720 --> 00:13:00,360 Speaker 2: the statute, this obstruction statute in other violent protests, and 216 00:13:00,400 --> 00:13:04,240 Speaker 2: she said that there weren't any other specific instances because 217 00:13:04,280 --> 00:13:07,000 Speaker 2: nothing like this has happened. She did bring some other 218 00:13:07,080 --> 00:13:11,280 Speaker 2: prosecutions up, though did all of them concern the destruction 219 00:13:11,440 --> 00:13:12,280 Speaker 2: of evidence. 220 00:13:13,200 --> 00:13:17,760 Speaker 5: That was an interesting exchange because she was asked if 221 00:13:17,800 --> 00:13:22,959 Speaker 5: the government had brought similar prosecutions for obstructing official proceeding 222 00:13:23,559 --> 00:13:27,760 Speaker 5: essentially against those who engaged in political protests other than 223 00:13:27,840 --> 00:13:30,880 Speaker 5: January sixth, and there one had the sense that some 224 00:13:31,000 --> 00:13:34,520 Speaker 5: of the conservative justices were trying to get a concession 225 00:13:34,960 --> 00:13:37,880 Speaker 5: that this statute was only used essentially against the January 226 00:13:37,880 --> 00:13:41,360 Speaker 5: six protesters. And her response effectively was there hasn't been 227 00:13:41,920 --> 00:13:45,400 Speaker 5: a similar fact pattern where people, through violence tried to 228 00:13:45,559 --> 00:13:48,800 Speaker 5: obstruct an official proceeding that would have lent themselves to 229 00:13:48,960 --> 00:13:52,160 Speaker 5: such a charge. But when she was pressed about using 230 00:13:52,240 --> 00:13:58,680 Speaker 5: the charge against defendants and situations that, aside from political violence, 231 00:13:58,920 --> 00:14:03,520 Speaker 5: simply just didn't evolve destruction or alteration of evidence, she 232 00:14:03,600 --> 00:14:05,800 Speaker 5: said there were examples that she could point to, and 233 00:14:05,840 --> 00:14:09,199 Speaker 5: there are some in her brief that involved, for example, 234 00:14:09,600 --> 00:14:11,920 Speaker 5: tipping off somebody that they were the subject of a 235 00:14:11,960 --> 00:14:16,959 Speaker 5: grand jury investigation, or identifying an undercover informant to an individual, 236 00:14:17,000 --> 00:14:19,960 Speaker 5: and she said, those don't involve tampering with evidence, and 237 00:14:20,000 --> 00:14:24,040 Speaker 5: we've used this same charge against individuals in those circumstances. 238 00:14:24,160 --> 00:14:28,560 Speaker 5: The response from the attorney for mister Fisher was, well, 239 00:14:28,600 --> 00:14:33,400 Speaker 5: those are also examples of cases involving efforts to tamper 240 00:14:33,440 --> 00:14:37,240 Speaker 5: with evidence, because those are witnesses, in effect, who have 241 00:14:37,480 --> 00:14:42,080 Speaker 5: been identified such that a person could arguably intimidate the 242 00:14:42,080 --> 00:14:45,480 Speaker 5: witness or alter their testimony. It just would be sort 243 00:14:45,520 --> 00:14:49,640 Speaker 5: of witnesses as opposed to documents as evidence. So it's 244 00:14:49,640 --> 00:14:53,160 Speaker 5: an interesting categorization question is do those in fact count 245 00:14:53,200 --> 00:14:58,240 Speaker 5: as non evidence related obstruction charges, as she argues, or 246 00:14:58,320 --> 00:15:02,280 Speaker 5: are they just another version of of evidence campering, as 247 00:15:02,480 --> 00:15:05,480 Speaker 5: Fisher would argue. It points to one of the big 248 00:15:05,600 --> 00:15:09,840 Speaker 5: questions here, which is what is the concern of this 249 00:15:10,040 --> 00:15:16,360 Speaker 5: statute fifteen twelve C. Is it concerned with campering with 250 00:15:16,600 --> 00:15:20,760 Speaker 5: documents and other forms of evidence, which was the specific 251 00:15:20,880 --> 00:15:26,480 Speaker 5: concern identified by Congress following the Enron scandal, or is 252 00:15:26,520 --> 00:15:29,800 Speaker 5: the concern of the statute better stated at a broader 253 00:15:29,920 --> 00:15:34,440 Speaker 5: level of generality, which is obstruction of official proceedings and 254 00:15:34,480 --> 00:15:38,720 Speaker 5: attempts to obstruct with official proceedings in whatever form such 255 00:15:38,720 --> 00:15:44,280 Speaker 5: obstruction might take, not limited solely to obstruction that is 256 00:15:44,400 --> 00:15:50,480 Speaker 5: accomplished through interference with evidence. The Splister General's position is 257 00:15:50,520 --> 00:15:54,360 Speaker 5: that it is the latter, more general concern, and that 258 00:15:54,480 --> 00:15:57,080 Speaker 5: is evidenced by the fact that Congress broke the section 259 00:15:57,560 --> 00:16:01,640 Speaker 5: into two parts. C one, which is address to evidence tampering, 260 00:16:02,040 --> 00:16:05,640 Speaker 5: and C two, which is the catch all, which starts 261 00:16:05,640 --> 00:16:10,120 Speaker 5: with the phrase or otherwise and then describes essentially any 262 00:16:10,160 --> 00:16:14,360 Speaker 5: other manner in which a person would obstruct an official proceeding. 263 00:16:14,840 --> 00:16:18,760 Speaker 5: And so she says, the concern of Congress was to 264 00:16:18,800 --> 00:16:25,480 Speaker 5: anticipate and outlaws ways of obstructing official proceedings that were 265 00:16:25,560 --> 00:16:30,440 Speaker 5: not limited to evidence tampering. And Congress couldn't anticipate and 266 00:16:30,560 --> 00:16:34,240 Speaker 5: articulate all the different forms that might take, and that's 267 00:16:34,280 --> 00:16:37,400 Speaker 5: why they inserted this C two provision that was charged 268 00:16:37,440 --> 00:16:39,960 Speaker 5: here and which she says fits the facts. 269 00:16:40,160 --> 00:16:43,360 Speaker 2: Jessica, you yourself looking at this, do you think that 270 00:16:43,760 --> 00:16:47,600 Speaker 2: the Justice Department was stretching it to charge these defendants 271 00:16:47,640 --> 00:16:48,280 Speaker 2: with obstruction? 272 00:16:49,080 --> 00:16:51,920 Speaker 5: I think if you look at the statute and you 273 00:16:53,120 --> 00:16:57,680 Speaker 5: follow the government's argument about how the statute can be 274 00:16:57,760 --> 00:17:02,560 Speaker 5: read as applying to any means of obstructing an official 275 00:17:02,600 --> 00:17:06,159 Speaker 5: proceeding so long as the person acts with corrupt intent 276 00:17:06,520 --> 00:17:10,439 Speaker 5: and this requisite nexus is satisfied, I think it is 277 00:17:10,480 --> 00:17:13,040 Speaker 5: a fair interpretation of the statute that it applies to 278 00:17:13,080 --> 00:17:17,520 Speaker 5: these facts. It is unprecedented, but that I think speaks 279 00:17:17,560 --> 00:17:21,760 Speaker 5: to the fact that there's been no similar fact pattern 280 00:17:21,920 --> 00:17:25,760 Speaker 5: where people have attempted to and did obstruct for a 281 00:17:25,800 --> 00:17:29,520 Speaker 5: time an official proceeding through such acts of violence. So 282 00:17:29,840 --> 00:17:33,280 Speaker 5: it is novel, but I don't think that it is 283 00:17:33,400 --> 00:17:37,320 Speaker 5: beyond the pale of what is covered by this statute. 284 00:17:37,520 --> 00:17:40,679 Speaker 5: I do think we'd be getting into some very interesting 285 00:17:40,800 --> 00:17:44,600 Speaker 5: territory if the Court were to say that it's finding 286 00:17:44,680 --> 00:17:49,280 Speaker 5: for Fisher and the statute cannot be read beyond applications 287 00:17:49,320 --> 00:17:53,879 Speaker 5: involving evidence, and whether the government then seeks to apply 288 00:17:53,960 --> 00:17:58,399 Speaker 5: the statute so limited to the facts presented here. The 289 00:17:58,440 --> 00:18:01,040 Speaker 5: government said in a footnote in its brief, and it 290 00:18:01,080 --> 00:18:04,000 Speaker 5: reiterated at the argument today, that it would like the 291 00:18:04,080 --> 00:18:08,199 Speaker 5: opportunity to argue that even under such a narrowed construction, 292 00:18:08,720 --> 00:18:13,959 Speaker 5: that the facts can meet that construction because the proceeding 293 00:18:14,359 --> 00:18:18,719 Speaker 5: before Congress involved the counting of the electoral votes, and 294 00:18:18,800 --> 00:18:23,720 Speaker 5: that involved essentially the evidence of the votes presented to Congress. 295 00:18:24,080 --> 00:18:26,280 Speaker 5: That's I think going to be very interesting to think 296 00:18:26,280 --> 00:18:31,280 Speaker 5: about whether that application strains the statute too much, and 297 00:18:31,359 --> 00:18:35,360 Speaker 5: that is precisely the argument that has been advanced by 298 00:18:35,400 --> 00:18:39,000 Speaker 5: some watching the Fisher case for its significance for the 299 00:18:39,000 --> 00:18:42,199 Speaker 5: case against Donald Trump, on the theory that if the 300 00:18:42,240 --> 00:18:45,520 Speaker 5: court rules against the government in Fisher and says that 301 00:18:45,600 --> 00:18:49,080 Speaker 5: acts of violence to obstruct official proceeding do not fall 302 00:18:49,119 --> 00:18:52,359 Speaker 5: within the statute, could a sort of backup argument be 303 00:18:53,000 --> 00:18:57,919 Speaker 5: that the electoral votes being certified in the course of 304 00:18:57,960 --> 00:19:01,919 Speaker 5: that proceeding before Congress, that that could be essentially the 305 00:19:02,040 --> 00:19:06,919 Speaker 5: hook to the documentary evidence that would be required to 306 00:19:07,000 --> 00:19:08,240 Speaker 5: satisfy the statute. 307 00:19:08,359 --> 00:19:11,240 Speaker 2: Could the Special Council go ahead with just two of 308 00:19:11,280 --> 00:19:12,560 Speaker 2: the charges against Trump? 309 00:19:13,000 --> 00:19:16,360 Speaker 5: Absolutely, the case could go forward based on the conspiracy 310 00:19:16,440 --> 00:19:20,399 Speaker 5: charge to defraud the United States and the conspiracy to 311 00:19:20,440 --> 00:19:23,360 Speaker 5: deprive people of the right to have their votes counted. 312 00:19:23,960 --> 00:19:26,919 Speaker 5: There's no reason the case couldn't go forward without the 313 00:19:26,960 --> 00:19:28,920 Speaker 5: two obstruction related charges. 314 00:19:29,480 --> 00:19:33,160 Speaker 2: A Trump appointee was the only District Court judge out 315 00:19:33,160 --> 00:19:36,560 Speaker 2: of fifteen in DC hearing the January sixth cases to 316 00:19:36,600 --> 00:19:41,719 Speaker 2: adopt this narrow reading of the statute dismiss Fisher's obstruction charge. 317 00:19:41,880 --> 00:19:45,960 Speaker 2: Then you had on the appellate court. Another Trump appointee 318 00:19:46,040 --> 00:19:48,880 Speaker 2: was the one who dissented and what does it say 319 00:19:48,880 --> 00:19:52,480 Speaker 2: if you have six conservatives or five conservatives on this 320 00:19:52,600 --> 00:19:56,280 Speaker 2: court with three Trump appointees. What does it say if 321 00:19:56,320 --> 00:20:01,120 Speaker 2: they dismiss the charges against Fisher and so the charges 322 00:20:01,160 --> 00:20:05,040 Speaker 2: fail against the other January sixth defendants, including Trump. 323 00:20:05,720 --> 00:20:10,720 Speaker 5: Statuto interpretation questions often do not line up exactly with 324 00:20:11,080 --> 00:20:15,199 Speaker 5: judges and justices perceived political affiliations. So one of the 325 00:20:15,240 --> 00:20:19,119 Speaker 5: cases that was discussed in the briefs and in the 326 00:20:19,240 --> 00:20:23,600 Speaker 5: argument today was a case called Yates, which involved the 327 00:20:23,640 --> 00:20:27,439 Speaker 5: construction of a related obstruction of justice statute. That was 328 00:20:27,640 --> 00:20:30,760 Speaker 5: a decision authored by Justice Kagan and involved the question 329 00:20:30,800 --> 00:20:33,680 Speaker 5: of whether a fish was a tangible object for purposes 330 00:20:34,160 --> 00:20:37,679 Speaker 5: of another statute that's nearby, and Justice Kagan wrote an 331 00:20:37,720 --> 00:20:39,639 Speaker 5: opinion for the court holding that a fish was not 332 00:20:39,720 --> 00:20:42,760 Speaker 5: a tangible object for purposes of that statute, which the 333 00:20:42,800 --> 00:20:46,960 Speaker 5: Court ruled in that context was limited to objects that 334 00:20:47,040 --> 00:20:51,000 Speaker 5: were similar to records of the kind maintained by businesses 335 00:20:51,280 --> 00:20:55,240 Speaker 5: and used as evidence, and that were the primary motivating 336 00:20:55,280 --> 00:20:58,639 Speaker 5: concern of Congress when it enacted the Sarbainanes Oxley Act. 337 00:20:59,000 --> 00:21:01,360 Speaker 5: Justice Kagan is usually thought of as being more aligned 338 00:21:01,440 --> 00:21:03,840 Speaker 5: with the liberal wing of the Court, but she wrote 339 00:21:03,840 --> 00:21:07,720 Speaker 5: that opinion that ruled against the government on its interpretation question. 340 00:21:07,960 --> 00:21:10,840 Speaker 5: There are a number of the justices, namely Justice Gorsuch, 341 00:21:10,960 --> 00:21:15,040 Speaker 5: who is somebody who's really advocated for robust application of 342 00:21:15,080 --> 00:21:17,359 Speaker 5: a doctrine known as the rule of lenity, which is 343 00:21:17,400 --> 00:21:22,359 Speaker 5: a defendant favoring doctrine that statutes criminal statutes should be 344 00:21:22,400 --> 00:21:24,879 Speaker 5: construed in a way that is more favorable to the 345 00:21:24,960 --> 00:21:28,120 Speaker 5: defendant when there is ambiguity about their terms. And he's 346 00:21:28,200 --> 00:21:31,160 Speaker 5: generally viewed as being more part of the conservative court. 347 00:21:31,440 --> 00:21:35,800 Speaker 5: So statute of interpretation questions sometimes lead to interesting outcomes 348 00:21:35,800 --> 00:21:40,760 Speaker 5: that don't align necessarily with the justices political orientation or 349 00:21:40,760 --> 00:21:43,560 Speaker 5: the political affiliation of the president who appointed them. So 350 00:21:43,640 --> 00:21:45,639 Speaker 5: I really don't know how the case is going to 351 00:21:45,640 --> 00:21:48,160 Speaker 5: come out, and I don't know that we should necessarily 352 00:21:48,200 --> 00:21:51,800 Speaker 5: predict it based on the appointing president of the judge 353 00:21:51,840 --> 00:21:54,159 Speaker 5: or justices who's considering the issue. 354 00:21:54,359 --> 00:21:57,639 Speaker 2: If the court finds for Fisher here, what happens to 355 00:21:57,640 --> 00:22:01,400 Speaker 2: the one hundred and twenty or so January sixth defendants 356 00:22:01,400 --> 00:22:05,440 Speaker 2: who've been convicted and sentenced under the same charge. 357 00:22:05,560 --> 00:22:09,840 Speaker 5: So I'm fairly certain that no defendant associated with January 358 00:22:09,880 --> 00:22:14,639 Speaker 5: six has been charged solely with this obstruction statute, but 359 00:22:14,680 --> 00:22:19,119 Speaker 5: there were other charges for each of them, so those 360 00:22:19,280 --> 00:22:22,040 Speaker 5: other convictions would stand even if the Court were to 361 00:22:22,119 --> 00:22:24,600 Speaker 5: rule against the government here. And if the court were 362 00:22:24,560 --> 00:22:27,720 Speaker 5: to rule that this obstruction statute cannot be used in 363 00:22:27,760 --> 00:22:30,600 Speaker 5: the context of January sixth because it didn't involve the 364 00:22:30,600 --> 00:22:34,280 Speaker 5: destruction of evidence, so the defendants in those other cases 365 00:22:34,280 --> 00:22:35,360 Speaker 5: would be resentenced. 366 00:22:36,000 --> 00:22:38,480 Speaker 2: Is there any way that the justices could come down 367 00:22:38,520 --> 00:22:42,560 Speaker 2: with a decision that affects Fisher but not the rest 368 00:22:42,600 --> 00:22:44,240 Speaker 2: of the January sixth defendants. 369 00:22:45,000 --> 00:22:46,560 Speaker 5: I mean, one of the things that's interesting here is 370 00:22:46,560 --> 00:22:49,600 Speaker 5: that because the case hasn't gone to trial yet, the 371 00:22:49,680 --> 00:22:54,120 Speaker 5: court has to decide the case based on its interpretation 372 00:22:54,280 --> 00:22:58,440 Speaker 5: of the statute and thinking about the facts as alleged 373 00:22:58,480 --> 00:23:01,760 Speaker 5: in the indictment only, not as established in a factual 374 00:23:01,840 --> 00:23:05,919 Speaker 5: record at trial. The case is presented on a legal 375 00:23:06,000 --> 00:23:10,520 Speaker 5: question of whether or not the obstruction of justice statute 376 00:23:10,560 --> 00:23:17,840 Speaker 5: in question encompasses acts that are not aimed at altering 377 00:23:17,960 --> 00:23:23,919 Speaker 5: evidence or things similar to documents and records as enumerated 378 00:23:24,119 --> 00:23:28,440 Speaker 5: in the closely related statute of fifteen twelve C. One. 379 00:23:28,960 --> 00:23:31,520 Speaker 5: The court I think is going to have to decide 380 00:23:31,560 --> 00:23:36,480 Speaker 5: that legal question in a way that it has ramifications 381 00:23:36,520 --> 00:23:41,959 Speaker 5: for all other similarly situated defendants who are charged based 382 00:23:41,960 --> 00:23:48,720 Speaker 5: on obstructing the preceding without the allegation that they specifically 383 00:23:49,200 --> 00:23:52,800 Speaker 5: were involved in the alteration of evidence or efforts to 384 00:23:52,880 --> 00:23:58,080 Speaker 5: impede evidence being used in the preceding. So it's hard 385 00:23:58,080 --> 00:24:01,320 Speaker 5: for me to imagine that the court renders an opinion 386 00:24:01,359 --> 00:24:06,639 Speaker 5: that does not have broad application with respect to the 387 00:24:06,800 --> 00:24:10,280 Speaker 5: other January sixth defendants, of whom there are at least 388 00:24:10,480 --> 00:24:13,879 Speaker 5: three hundred charged with this crime. If there were a 389 00:24:13,960 --> 00:24:16,679 Speaker 5: way for the court to write a narrow opinion that 390 00:24:16,760 --> 00:24:19,440 Speaker 5: decided the case solely based on the facts is alleged 391 00:24:19,960 --> 00:24:25,600 Speaker 5: against Fisher himself, that would mean it wouldn't have implications 392 00:24:25,640 --> 00:24:28,879 Speaker 5: for other cases. But given the particular posture of this 393 00:24:28,960 --> 00:24:32,800 Speaker 5: case and the way the question presented was framed and argued, 394 00:24:33,000 --> 00:24:36,480 Speaker 5: it's difficult for me to see a very narrow holding. 395 00:24:36,920 --> 00:24:40,160 Speaker 2: Thanks so much for your insights, Jessica, I appreciate it best, 396 00:24:40,160 --> 00:24:44,000 Speaker 2: Professor Jessica Garroth of Cardozo Law School. Coming up next 397 00:24:44,000 --> 00:24:47,560 Speaker 2: on The Bloomberg Law Show, It's day two of Donald 398 00:24:47,560 --> 00:24:51,440 Speaker 2: Trump's hush money trial, and some jurors have actually been 399 00:24:51,520 --> 00:24:55,080 Speaker 2: sworn in. I'm June Grosso and you're listening to Bloomberg. 400 00:24:57,600 --> 00:25:00,520 Speaker 1: I think we have a very much appl clicked at. 401 00:25:00,560 --> 00:25:01,920 Speaker 4: Judge shouldn't be on the case. 402 00:25:02,600 --> 00:25:04,679 Speaker 2: He's rushing this trial and. 403 00:25:04,920 --> 00:25:07,320 Speaker 4: He's doing as much as he can for the Democrats. 404 00:25:07,320 --> 00:25:10,320 Speaker 3: This is a Biden inspired win. 405 00:25:10,400 --> 00:25:14,240 Speaker 2: Shut day two of Donald Trump's criminal trial in the 406 00:25:14,320 --> 00:25:17,879 Speaker 2: hush money case, and he had familiar complaints about the 407 00:25:18,040 --> 00:25:21,480 Speaker 2: judge and new complaints about the speed of the trial. 408 00:25:21,960 --> 00:25:25,240 Speaker 2: Jury selection did seem to go into overdrive this afternoon, 409 00:25:25,960 --> 00:25:29,400 Speaker 2: with seven jurors sworn in and told to return on Monday. 410 00:25:29,960 --> 00:25:34,200 Speaker 2: Could the judge be anticipating opening statements on Monday joining 411 00:25:34,240 --> 00:25:37,719 Speaker 2: me to talk about the jury selection process. Is Michael 412 00:25:37,760 --> 00:25:41,960 Speaker 2: Weinstein a partner at Cole Shots. I'm wondering if the 413 00:25:42,000 --> 00:25:46,240 Speaker 2: reality of being a criminal defendant is setting in because 414 00:25:46,880 --> 00:25:49,640 Speaker 2: during his civil trials, Trump could breathe in and out 415 00:25:49,680 --> 00:25:53,000 Speaker 2: when he wanted to. Now he asked the judge to 416 00:25:53,000 --> 00:25:55,800 Speaker 2: be off on Wednesdays when the trial is not in session, 417 00:25:56,000 --> 00:26:00,560 Speaker 2: to go to Supreme Court arguments on presidential immunity, and 418 00:26:00,880 --> 00:26:03,920 Speaker 2: the judge said, you know your client is a criminal defendant. 419 00:26:03,920 --> 00:26:08,040 Speaker 2: He's required to be here. So it's different for Donald 420 00:26:08,080 --> 00:26:10,160 Speaker 2: Trump now than it was in the civil cases. 421 00:26:10,800 --> 00:26:13,960 Speaker 4: It is different, and the reality may have struck him, 422 00:26:13,960 --> 00:26:16,399 Speaker 4: but I don't think we'll ever really know what he 423 00:26:16,480 --> 00:26:19,680 Speaker 4: thinks about it, other than the way he positions himself 424 00:26:20,040 --> 00:26:23,480 Speaker 4: in that he's getting persecuted, not prosecuted. I think he 425 00:26:23,560 --> 00:26:27,240 Speaker 4: also will play this out in the media unlike any 426 00:26:27,240 --> 00:26:31,919 Speaker 4: other defendant, And so even if he does feel somewhat 427 00:26:32,240 --> 00:26:34,879 Speaker 4: abused by the system, he's going to turn that to 428 00:26:34,920 --> 00:26:35,840 Speaker 4: his advantage. 429 00:26:36,119 --> 00:26:38,840 Speaker 2: And I do want to straighten at one thing. Trump 430 00:26:38,840 --> 00:26:41,560 Speaker 2: had said after court that the judge wouldn't let him 431 00:26:41,880 --> 00:26:45,360 Speaker 2: skip court on May seventeen to attend his son's graduation 432 00:26:45,600 --> 00:26:48,040 Speaker 2: from high school. But the judge has yet to rule 433 00:26:48,040 --> 00:26:49,760 Speaker 2: on that, So I just want to clarify that. 434 00:26:49,920 --> 00:26:54,680 Speaker 4: And oftentimes, you know, Trump says things which are belied 435 00:26:54,760 --> 00:26:58,000 Speaker 4: by the facts, and so you know, he wants the 436 00:26:58,040 --> 00:27:01,199 Speaker 4: world and the public to think every decision is being 437 00:27:01,280 --> 00:27:04,200 Speaker 4: made against him, when in reality, some of the decisions 438 00:27:04,240 --> 00:27:07,880 Speaker 4: being made by the court or specifically this judge are 439 00:27:07,880 --> 00:27:11,560 Speaker 4: pretty traditional, you know, normal things that a judge would 440 00:27:11,560 --> 00:27:14,240 Speaker 4: say when a criminal defendant is charged as he is here. 441 00:27:14,480 --> 00:27:18,040 Speaker 2: This is not the first time that Trump has, you know, 442 00:27:18,119 --> 00:27:21,040 Speaker 2: tried to degrade the judges. He comes out of court 443 00:27:21,200 --> 00:27:24,000 Speaker 2: or goes into court every day saying, this is a 444 00:27:24,080 --> 00:27:28,160 Speaker 2: Trump paiding judge, he's biased. This judge is very professional. 445 00:27:28,359 --> 00:27:30,280 Speaker 2: I assume he's not going to let that get to him. 446 00:27:30,280 --> 00:27:34,560 Speaker 2: But what is the point of that. It just seems counterproductive. 447 00:27:34,640 --> 00:27:37,639 Speaker 2: And even in the court room you have the lawyers 448 00:27:38,280 --> 00:27:40,159 Speaker 2: repeating arguments. 449 00:27:39,960 --> 00:27:43,119 Speaker 4: Because his audience is not the general public. His audience 450 00:27:43,280 --> 00:27:47,800 Speaker 4: is his supporters where he could fundraise for his presidential campaign. 451 00:27:48,240 --> 00:27:50,200 Speaker 4: So you have to look at it under the view 452 00:27:50,359 --> 00:27:52,879 Speaker 4: of why is he doing it? And his motivation is 453 00:27:53,000 --> 00:27:56,600 Speaker 4: very different than a normal criminal defendant, where they would 454 00:27:56,640 --> 00:27:58,879 Speaker 4: be talking about the evidence and they'd be talking about, 455 00:27:59,160 --> 00:28:02,359 Speaker 4: you know, their repute. Here he's using it as a 456 00:28:02,440 --> 00:28:06,680 Speaker 4: narrative to support his overall candidacy, and that's why it's 457 00:28:06,680 --> 00:28:07,159 Speaker 4: so different. 458 00:28:07,760 --> 00:28:12,119 Speaker 2: Last week, Trump said that jury selection is luck, and 459 00:28:12,160 --> 00:28:14,240 Speaker 2: I'm wondering how much of that is true. How much 460 00:28:14,240 --> 00:28:17,000 Speaker 2: of it is luck the kind of jury pool you get, 461 00:28:17,480 --> 00:28:19,639 Speaker 2: and how much of it is the skill of the 462 00:28:19,760 --> 00:28:23,679 Speaker 2: lawyers or you know, the knowledge of the judge. 463 00:28:24,200 --> 00:28:27,320 Speaker 4: So look, being a criminal defense lawyer for twenty five years, 464 00:28:27,560 --> 00:28:30,280 Speaker 4: I want to believe that there's some skill involved, so 465 00:28:30,760 --> 00:28:33,120 Speaker 4: I won't agree with him that it's completely luck. There 466 00:28:33,160 --> 00:28:36,520 Speaker 4: are some nuances, of course, to the selection process, just 467 00:28:36,600 --> 00:28:39,000 Speaker 4: like if someone was painting their house. You know, painting 468 00:28:39,000 --> 00:28:41,800 Speaker 4: a house is not traditionally hard, but there are nuances 469 00:28:41,920 --> 00:28:44,840 Speaker 4: doing it properly and having an end result, which is good. 470 00:28:45,200 --> 00:28:48,560 Speaker 4: I think the one thing that Trump doesn't appreciate, or 471 00:28:48,640 --> 00:28:51,360 Speaker 4: does appreciate and is scared of, is that the jury 472 00:28:51,400 --> 00:28:55,959 Speaker 4: pool from Manhattan, the City of New York, is heavily democratic, 473 00:28:56,080 --> 00:28:59,120 Speaker 4: and therefore that does not bode well for him. So 474 00:28:59,240 --> 00:29:02,720 Speaker 4: even if it's as he says it is, he's drawing 475 00:29:02,760 --> 00:29:06,040 Speaker 4: from a jury pool which is not favorable for him 476 00:29:06,320 --> 00:29:06,920 Speaker 4: in any way. 477 00:29:07,680 --> 00:29:08,120 Speaker 5: I think he. 478 00:29:08,120 --> 00:29:10,880 Speaker 2: Understands that because he wanted to get the case moved 479 00:29:10,920 --> 00:29:12,959 Speaker 2: to Staten Island, where the votes are in his favor, 480 00:29:13,040 --> 00:29:16,000 Speaker 2: rather than in Manhattan, where he got only eleven percent 481 00:29:16,040 --> 00:29:16,760 Speaker 2: of the vote. 482 00:29:17,280 --> 00:29:19,280 Speaker 4: Yes, I'm sure he would love to have it move 483 00:29:19,360 --> 00:29:21,840 Speaker 4: to Oklahoma or Indiana or one of the other states 484 00:29:21,880 --> 00:29:24,680 Speaker 4: as well, but the likelihood of it being transferred out 485 00:29:24,720 --> 00:29:28,040 Speaker 4: of the District of New York and Manhattan is pretty small. 486 00:29:28,240 --> 00:29:30,200 Speaker 4: They handle these types of cases all the time. And 487 00:29:30,240 --> 00:29:34,280 Speaker 4: this is putting aside the defendant himself. This issue fraud 488 00:29:34,720 --> 00:29:37,200 Speaker 4: is a pretty bread and butter type of issue that's 489 00:29:37,240 --> 00:29:40,960 Speaker 4: brought by these types of district attorney and prosecutor in 490 00:29:41,040 --> 00:29:42,360 Speaker 4: Manhattan all the time. 491 00:29:43,000 --> 00:29:47,240 Speaker 2: Now you'll hear lawyers, both prosecutors and defense attorneys say 492 00:29:47,840 --> 00:29:50,360 Speaker 2: we just want a jury who can hear the evidence 493 00:29:50,520 --> 00:29:54,480 Speaker 2: and be impartial. That's really not the case. They're looking 494 00:29:54,520 --> 00:29:57,880 Speaker 2: for jurors who will be receptive to their case. So 495 00:29:58,160 --> 00:29:59,760 Speaker 2: what are they looking for here. 496 00:30:00,080 --> 00:30:02,360 Speaker 4: Well, of course they want a jury that is receptive 497 00:30:02,400 --> 00:30:04,920 Speaker 4: to their case and is open to their arguments. But 498 00:30:05,000 --> 00:30:07,200 Speaker 4: they can't say we want a jury that's only going 499 00:30:07,240 --> 00:30:09,720 Speaker 4: to you know, believe me, as a defense lawyer and 500 00:30:09,720 --> 00:30:12,560 Speaker 4: as a prosecutor, you can't. You can't be so clean 501 00:30:12,640 --> 00:30:14,440 Speaker 4: and clear cut as to what you're looking for. You 502 00:30:14,480 --> 00:30:17,360 Speaker 4: have to be a little more nuanced and being fair 503 00:30:17,360 --> 00:30:20,560 Speaker 4: and impartial. And look, I mean, the prosecutor's trying to 504 00:30:20,600 --> 00:30:22,760 Speaker 4: do the right thing and getting a fair and impartial jury. 505 00:30:23,080 --> 00:30:25,240 Speaker 4: The defense lawyers are doing their part to get a 506 00:30:25,480 --> 00:30:30,640 Speaker 4: jury to their narrative and their story, and ultimately, you know, 507 00:30:30,800 --> 00:30:34,320 Speaker 4: history will show that difficult cases, you know, they are 508 00:30:34,400 --> 00:30:37,000 Speaker 4: able to get jurors, and the jurors are able to 509 00:30:37,040 --> 00:30:40,320 Speaker 4: hear it, and the cases they are able to be tried. 510 00:30:41,120 --> 00:30:45,640 Speaker 2: The going narrative that the defense is looking for more 511 00:30:46,320 --> 00:30:51,800 Speaker 2: blue collar working class, less well educated, and the prosecution 512 00:30:52,040 --> 00:30:56,600 Speaker 2: is looking for white collar and you know, college educated 513 00:30:56,720 --> 00:30:57,240 Speaker 2: or better. 514 00:30:57,720 --> 00:31:00,760 Speaker 4: I suspect that's probably a fair representation. It's actually funny 515 00:31:00,760 --> 00:31:04,040 Speaker 4: because if you look at it from a political standpoint, 516 00:31:04,200 --> 00:31:06,840 Speaker 4: what Trump is looking for is really the base of 517 00:31:06,880 --> 00:31:10,120 Speaker 4: the Democratic Party, and what the prosecutor is looking for 518 00:31:10,200 --> 00:31:13,040 Speaker 4: is really the base of the Republican Party. So it's 519 00:31:13,080 --> 00:31:15,880 Speaker 4: really flipped for purposes of bringing a case like this. 520 00:31:16,520 --> 00:31:19,880 Speaker 2: The jury questionnaire, there are lots of questions where you 521 00:31:19,920 --> 00:31:23,360 Speaker 2: get your news from. So if you get jurors who 522 00:31:23,400 --> 00:31:28,320 Speaker 2: say I get my news from MSNBC and the Times, 523 00:31:28,400 --> 00:31:30,600 Speaker 2: and other jurors who say, well, I get my news 524 00:31:30,600 --> 00:31:33,479 Speaker 2: from the Wall Street Journal and Fox, I mean, do 525 00:31:33,520 --> 00:31:36,320 Speaker 2: you pretty much know what their political leanings are? 526 00:31:37,360 --> 00:31:41,240 Speaker 4: I think the answer is yes to a degree. But 527 00:31:41,400 --> 00:31:44,640 Speaker 4: here's the key. The question is not whether the jurors 528 00:31:44,920 --> 00:31:49,280 Speaker 4: like or dislike Donald Trump, but whether they're feelings would 529 00:31:49,320 --> 00:31:54,160 Speaker 4: interfere with their ability to serve without bias. So even 530 00:31:54,280 --> 00:31:57,320 Speaker 4: if they listen to Fox News and they read the 531 00:31:57,320 --> 00:31:59,720 Speaker 4: Wall Street Journal, or they read the New York Times 532 00:31:59,800 --> 00:32:03,160 Speaker 4: religiously and watch CNN in the evening, that's not the 533 00:32:03,280 --> 00:32:05,560 Speaker 4: end of the test. You have to look and see 534 00:32:05,600 --> 00:32:09,480 Speaker 4: whether or not by doing that it will influence their 535 00:32:09,520 --> 00:32:13,360 Speaker 4: ability to be impartial and act without bias. That's the key. 536 00:32:14,400 --> 00:32:18,240 Speaker 2: How do you avoid getting a stealth juror on the case, 537 00:32:18,360 --> 00:32:20,360 Speaker 2: one who has an agenda either way? 538 00:32:20,880 --> 00:32:23,760 Speaker 4: Yeah, that's difficult. That's always an issue in a criminal case, 539 00:32:23,840 --> 00:32:27,480 Speaker 4: and you traditionally ask written questions and you ask them 540 00:32:27,520 --> 00:32:31,000 Speaker 4: to answer under oath, and then each attorney is able 541 00:32:31,040 --> 00:32:34,040 Speaker 4: to ask additional questions to flush out whether or not 542 00:32:34,080 --> 00:32:36,680 Speaker 4: they have true feelings which didn't come out in the 543 00:32:37,200 --> 00:32:39,600 Speaker 4: written questions, and then the judge of course has an 544 00:32:39,600 --> 00:32:42,200 Speaker 4: opportunity to ask them questions as well. But it is 545 00:32:42,240 --> 00:32:45,080 Speaker 4: always a risk, and there are cases where a stealth 546 00:32:45,160 --> 00:32:49,480 Speaker 4: juror does kind of appear, but traditionally, through the juror 547 00:32:49,480 --> 00:32:51,840 Speaker 4: selection process, you can try to flush those type of 548 00:32:51,840 --> 00:32:52,320 Speaker 4: people out. 549 00:32:52,800 --> 00:32:56,120 Speaker 2: And in this case it's even harder because of the 550 00:32:56,200 --> 00:32:59,240 Speaker 2: high profile nature. You have to believe that some jurors 551 00:32:59,240 --> 00:33:00,800 Speaker 2: are going to want to get out on the jury 552 00:33:00,920 --> 00:33:04,560 Speaker 2: just because of that. Today, a dismissed you, a dismissed 553 00:33:04,640 --> 00:33:09,120 Speaker 2: juror did interviews on at least two cable news outlets, 554 00:33:09,640 --> 00:33:12,000 Speaker 2: and you know, how much does she have to say 555 00:33:12,080 --> 00:33:14,400 Speaker 2: after a day. So it seems like there are going 556 00:33:14,480 --> 00:33:17,280 Speaker 2: to be a lot of people who want the attention 557 00:33:17,960 --> 00:33:19,040 Speaker 2: and want to be on the case. 558 00:33:19,680 --> 00:33:22,200 Speaker 4: I think that's a fair concern. I think, you know, 559 00:33:22,320 --> 00:33:24,600 Speaker 4: the risk also is social media. Is what are these 560 00:33:24,640 --> 00:33:27,360 Speaker 4: people going to be posting either during your trial, in 561 00:33:27,400 --> 00:33:30,320 Speaker 4: the evenings of the trial, immediately after the trial. In 562 00:33:30,360 --> 00:33:32,160 Speaker 4: this day and age, you know, it seems like no 563 00:33:32,200 --> 00:33:34,680 Speaker 4: one can keep a secret and everybody wants to talk 564 00:33:35,160 --> 00:33:37,560 Speaker 4: at all times of the day and in all formats, 565 00:33:37,760 --> 00:33:39,400 Speaker 4: And I think that's a real risk. I think what 566 00:33:39,440 --> 00:33:41,720 Speaker 4: the judge will do is lay down the law and 567 00:33:41,760 --> 00:33:44,480 Speaker 4: make it very clear to the jurors that they need 568 00:33:44,560 --> 00:33:46,880 Speaker 4: to be, you know, off social media and not read 569 00:33:46,920 --> 00:33:49,680 Speaker 4: papers and just be dedicated to the service at hand, 570 00:33:49,720 --> 00:33:52,520 Speaker 4: which is listening to the evidence and making an ultimate 571 00:33:52,520 --> 00:33:54,520 Speaker 4: decision on his guilt or innocence. 572 00:33:55,000 --> 00:33:58,240 Speaker 2: The judge admonished Trump at one point today after he 573 00:33:58,280 --> 00:34:02,880 Speaker 2: apparently spoke loudly in gestured while the judge was questioning 574 00:34:02,920 --> 00:34:05,440 Speaker 2: a woman about a social media post. I mean, how 575 00:34:05,520 --> 00:34:09,640 Speaker 2: much are the jurors watching the defendant and sort of 576 00:34:09,880 --> 00:34:13,360 Speaker 2: taking stock of him during the jury selection? 577 00:34:13,960 --> 00:34:18,840 Speaker 4: So look, I think jurors watch the defendants, the lawyers, 578 00:34:19,360 --> 00:34:22,080 Speaker 4: the judge like a hawk. I think they pick up 579 00:34:22,120 --> 00:34:24,879 Speaker 4: on even the most subtle things. I think they look 580 00:34:24,920 --> 00:34:27,800 Speaker 4: to see what the defendant is saying to his council, 581 00:34:27,840 --> 00:34:33,160 Speaker 4: whether he's writing furiously, whether he's nodding off, whether he's gasping, oh, 582 00:34:33,200 --> 00:34:36,000 Speaker 4: I can't believe that type of you know, reaction. All 583 00:34:36,040 --> 00:34:38,560 Speaker 4: of those things jurors pick up and I think that 584 00:34:38,680 --> 00:34:41,520 Speaker 4: does start to lay the groundwork for, you know, whether 585 00:34:41,560 --> 00:34:46,160 Speaker 4: they really like the defendant. And by extension, that does 586 00:34:46,200 --> 00:34:49,080 Speaker 4: play into in my experience, whether or not, you know, 587 00:34:49,160 --> 00:34:51,240 Speaker 4: they'll give the benefit of the doubt to the defendant. 588 00:34:51,320 --> 00:34:55,040 Speaker 4: If a defendant is just so brusque and so rude 589 00:34:55,239 --> 00:34:58,680 Speaker 4: and just you know, disregards everything about a juror and 590 00:34:58,760 --> 00:35:02,440 Speaker 4: their service, I don't both well for them for the defendants. 591 00:35:02,800 --> 00:35:08,360 Speaker 2: So Judge Wanmershawn, very experienced trial judge. He seems to 592 00:35:08,400 --> 00:35:13,360 Speaker 2: have set the tone even during the pre trial motions. 593 00:35:13,840 --> 00:35:16,399 Speaker 2: How important is it that He's set the tone as 594 00:35:16,520 --> 00:35:20,560 Speaker 2: far as the gag order too, because Trump over the 595 00:35:20,600 --> 00:35:25,080 Speaker 2: weekend commented on potential witnesses, not naming them, but it 596 00:35:25,120 --> 00:35:28,040 Speaker 2: was obvious that it was Stormy Daniels and Michael Cohen, 597 00:35:28,280 --> 00:35:31,439 Speaker 2: and the prosecutor is asking for him to be held 598 00:35:31,480 --> 00:35:35,080 Speaker 2: in contempt and fined. Should the judge right now draw 599 00:35:35,120 --> 00:35:35,600 Speaker 2: the line? 600 00:35:36,520 --> 00:35:39,120 Speaker 4: I think it's very important for this judge, or any 601 00:35:39,200 --> 00:35:42,799 Speaker 4: judge in the situation like this, to make it very 602 00:35:42,880 --> 00:35:46,759 Speaker 4: clear to defendants and counsel as to what is acceptable 603 00:35:46,760 --> 00:35:49,160 Speaker 4: and what is not, especially since there is a pre 604 00:35:49,280 --> 00:35:54,040 Speaker 4: existing gag order. What's happening here is Trump is flexing 605 00:35:54,520 --> 00:35:57,120 Speaker 4: his muscle a little bit and trying to challenge the 606 00:35:57,160 --> 00:35:59,600 Speaker 4: gag order. And if he's able to do that on 607 00:35:59,719 --> 00:36:02,319 Speaker 4: day one, day two, day three of the trial, I 608 00:36:02,360 --> 00:36:04,520 Speaker 4: can only imagine what's going to happen on day thirty 609 00:36:04,520 --> 00:36:06,440 Speaker 4: and forty five. It's just going to be like there 610 00:36:06,520 --> 00:36:09,160 Speaker 4: was no gag order in the first place. So I 611 00:36:09,160 --> 00:36:12,080 Speaker 4: think the judge has to come down someone hard and 612 00:36:12,200 --> 00:36:15,920 Speaker 4: somewhat strict and be very very strident with the defendant 613 00:36:16,280 --> 00:36:19,759 Speaker 4: and his counsel about what's acceptable and what's not. Otherwise, 614 00:36:19,960 --> 00:36:21,680 Speaker 4: all bets are off, and it's going to be as 615 00:36:21,719 --> 00:36:23,760 Speaker 4: though the gag order never existed in the first place. 616 00:36:24,160 --> 00:36:27,400 Speaker 2: I'm sure there are more antics ahead. Thanks so much, Michael. 617 00:36:27,680 --> 00:36:31,920 Speaker 2: That's former federal prosecutor Michael Weinstein of Cole Shots. And 618 00:36:31,960 --> 00:36:34,440 Speaker 2: that's it for this edition of the Bloomberg Law Podcast. 619 00:36:34,800 --> 00:36:37,160 Speaker 2: Remember you've can always get the latest legal news by 620 00:36:37,200 --> 00:36:41,000 Speaker 2: subscribing and listening to the show on Apple Podcasts, Spotify, 621 00:36:41,320 --> 00:36:45,160 Speaker 2: and at Bloomberg dot com, slash podcast, Slash Law. I'm 622 00:36:45,239 --> 00:36:47,680 Speaker 2: June Grosso and this is Bloomberg