Speaker 1: You're listening to Bloomberg Law with June Grosso from Bloomberg Radio.
Speaker 1: To millions of viewers, Fox News hosts promoted Donald Trump's
Speaker 1: false theories about a stolen election, allowing his allies to
Speaker 1: spout those claims on their airwaves in prime time, but
Speaker 1: to one another, the host and top executives expressed doubts
Speaker 1: about the claims and mocked the people making them. As
Speaker 1: part of its one point eight billion dollar defamation suit
Speaker 1: against Fox, Dominion Voting Systems has revealed private communications of
Speaker 1: hosts like Tucker Carlson and Laura Ingraham and network bigwigs,
Speaker 1: including the chairman of Fox Corporation, Rupert Murdoch. Quote Sidney
Speaker 1: Powell is lying end quote. Carlson texted a producer about
Speaker 1: Trump's lawyer. Ingraham texted Carlson that Powell is quote a
Speaker 1: complete nut. No one will work with her. Here's that
Speaker 1: lawyer that Ingraham called a complete nut on her show.
Speaker 1: This is coup five point zero and in the Department
Speaker 1: of Justice and the FBI really need to get after
Speaker 1: it right now and investigate all the reports of fraud.
Speaker 1: There are hundreds of them. Well, I hope at Charney
Speaker 1: General Barr is doing that. Very very hopeful that he's
Speaker 1: doing that. Otherwise we're in big trouble as a country,
Speaker 1: especially with elections going forward. Joining me is Douglas Morrell,
Speaker 1: a partner at Greenberg Gloucesker. I want you to start
Speaker 1: by explaining Dominions claims. What are they alleging in this lawsuit? So,
Speaker 1: in its lawsuit against Fox, Dominion Voting Systems is essentially
Speaker 1: claiming that Fox knowingly published a series of statements by
Speaker 1: not only others, but by its own presenters, its own
Speaker 1: show hosts that falsely claimed that somehow Dominions voting machines
Speaker 1: were responsible for flipping votes or for changing the outcome
Speaker 1: of the twenty twenty presidential election. Obviously, a news organization
Speaker 1: is involved. So what does Dominion have to prove to
Speaker 1: make its case. So Dominion has acknowledged in this case
Speaker 1: that it is a public figure, and that has a
Speaker 1: significant effect upon what has to be proven in order
Speaker 1: to prevail in a defamation case. Specifically, because it's a
Speaker 1: public figure, it has to show that the statements that
Speaker 1: were aired by Fox were aired knowing them to be false,
Speaker 1: or were aired with reckless disregard for their truth, or falsity,
Speaker 1: and the evidence that Dominion has presented so far would
Speaker 1: seem to be one of those rare situations where that
Speaker 1: test can be met, and so the case may well
Speaker 1: be decided without the knee for a trial, or if
Speaker 1: it goes to trial, I think the evidence is very
Speaker 1: strong that that test that standard will be met. Is
Speaker 1: there a difference when a news organization is involved. The
Speaker 1: standard that applies to news organizations really isn't necessarily different
Speaker 1: from the standard that would apply in a regular individual
Speaker 1: defamation case. The fact, though, is that when you're dealing
Speaker 1: with a media defendant, the question of publication, which is
Speaker 1: an element of any defamation case, is usually a foregone conclusion.
Speaker 1: If we were talking about a situation where you and
Speaker 1: I were having a private conversation and I said nasty
Speaker 1: things about you, that would not be subject to a
Speaker 1: defamation claim because it hasn't been published to any third party.
Speaker 1: So whenever a media defendant is involved, by definition, there's
Speaker 1: been a publication and that element is taken care of,
Speaker 1: but all of the other elements of a defamation claim
Speaker 1: remain the same. In the papers supporting the motion for
Speaker 1: summary judgment, Dominion describes people from the top of the organization,
Speaker 1: on air hosts, people behind the camera discussing that these
Speaker 1: claims about a stolen election were false. Yeah. So what
Speaker 1: is interesting about the summary judgment papers that Dominion has
Speaker 1: filed is the nature and extent of the evidence that
Speaker 1: they've been able to accumulate through discovery and from Rupert
Speaker 1: Murdoch on down to the on air talent that Fox
Speaker 1: us and in some cases still uses. There are a
Speaker 1: wealth of emails, text messages and deposition testimony which seem
Speaker 1: to pretty clearly indicate that they knew that what was
Speaker 1: being broadcast and what they themselves were broadcasting were lies.
Speaker 1: And that is extraordinarily unusual to find in a case
Speaker 1: of defamation. You don't have the party accused essentially confessing
Speaker 1: that this is our modus operandi. And indeed, you know,
Speaker 1: what is now seems to be apparent is that lying
Speaker 1: was a part of Fox's business model, and that's because
Speaker 1: they were concerned that their viewers were being turned off
Speaker 1: by having them tell the truth about what occurred with
Speaker 1: respect to the twenty twenty election, and we're instead turning
Speaker 1: to other sources such as Newsmax. So is it enough
Speaker 1: that they lied? Does Dominion have to prove anything else.
Speaker 1: Dominion has to prove that knew that what was being
Speaker 1: broadcast were lots and the evidence that's been accumulated thus
Speaker 1: far would seem to pretty clearly show that there was
Speaker 1: that knowledge at a point in time when it was
Speaker 1: quite clear that Dominion had no culpability with respect to
Speaker 1: changing votes or hiding votes or manipulating vote. And what's
Speaker 1: unusual too about this case is that in an ordinary
Speaker 1: defamation lawsuit, you might have a single story where a
Speaker 1: statement made within that one story is found to be defamatory.
Speaker 1: Here you have an ongoing series of broadcast statements made
Speaker 1: by people who we now know knew that what they
Speaker 1: were saying was untruthful at the time they said it,
Speaker 1: and that there was not just one instance of this,
Speaker 1: but it occurred time and time again with multiple on
Speaker 1: air talent. Fox said the dominion filing mischaracterized the record
Speaker 1: Jerry pick quote, stripped of key context, and spilled considerable
Speaker 1: ink on facts that are irrelevant under black letter principles
Speaker 1: of defamation law. Is that possible, Well, let me say
Speaker 1: that none of us on the outside have a full
Speaker 1: record of everything that has been discovered during the course
Speaker 1: of this litigation, and indeed we may never have that.
Speaker 1: For example, the one hundred and ninety two page filing
Speaker 1: that Dominion presented is replete with blacked out information, so
Speaker 1: we don't even know the full extent of everything that
Speaker 1: Dominion knows, and it's not entirely clear to me why
Speaker 1: those redactions were made in this motion. The motion itself
Speaker 1: was withheld from public disclosure, was sealed when it was
Speaker 1: originally filed, and it was only subsequently publicly released, but
Speaker 1: released in a manner where we still don't know the
Speaker 1: full extent of everything that's been said. Now, it's possible
Speaker 1: that Fox is correct that there has been some selective
Speaker 1: editing or cherry picking of quotes, and that perhaps context
Speaker 1: needs to be flashed out, but that's a job that
Speaker 1: Fox is going to have to do on its own,
Speaker 1: and we will see whether they're able to put meat
Speaker 1: on the bones that it has presented. So Fox lawyers
Speaker 1: also claim that everything their anchors said was protected by
Speaker 1: the First Amendment, and argues that by covering Trump's fraud claims,
Speaker 1: the network was doing what any media organization would reporting
Speaker 1: and commenting on a matter of undeniable newsworthiness. So the
Speaker 1: newsworthiness defense, along with the fair and true report defense,
Speaker 1: along with the neutral reportage defense that Fox has raised
Speaker 1: in this case, have all been essentially, if not completely eviscerated,
Speaker 1: largely rendered moot by prior decisions of the court that
Speaker 1: refused to allow Fox to have the case dismissed before
Speaker 1: this point. And so those claims bring quite hollow in
Speaker 1: light of what the trial judge has already determined. And
Speaker 1: so Fox, I think is engaged in more of a
Speaker 1: pr offensive than it is in trying to convince the
Speaker 1: court that what it has already decided is wrong. That
Speaker 1: tell us what the judge has already decided the case.
Speaker 1: At an early stage in any case, you have the
Speaker 1: opportunity to challenge a lawsuit based exclusively upon what the
Speaker 1: pleadings in the case say, what the complaint that was
Speaker 1: filed said, and you do that by way of emotion
Speaker 1: to dismiss In this case, the complaint that Dominion filed
Speaker 1: was extraordinarily detailed. I don't recall how many hundreds of
Speaker 1: pages were filed, but it included lots of evidence that
Speaker 1: it had accumulated even without having access to text messages
Speaker 1: and emails and other material through deposition, it had access
Speaker 1: to information that when these broadcasters from Fox were making
Speaker 1: these claims, that the facts of Dominions non involved in
Speaker 1: any election rigging were absolutely clear, they had been investigated,
Speaker 1: they had been adjudicated in cases in which Dominion's conduct
Speaker 1: was put in issue, and it was known to the
Speaker 1: world that these claims about Dominions voting machines were false.
Speaker 1: But yet even after that had occurred, Fox posts continued
Speaker 1: to make these unfounded and in many cases outrageous claims
Speaker 1: about Dominion wholly without any acknowledgement of the fact that
Speaker 1: these were false. And you know, it's one thing for
Speaker 1: a guest on a show to make claims that one
Speaker 1: may not know are going to be false. It's quite
Speaker 1: another thing for the host themselves to be adopting those
Speaker 1: claims and reinforcing them and affirming them. And it's also
Speaker 1: another thing for those guests who are being brought onto
Speaker 1: the show are guests who are known to be of
Speaker 1: questionable character and reliability, which is another thing that the
Speaker 1: evidence in this case is already demonstrated, So a summary
Speaker 1: judgment motion by a plaintiff in a case like this
Speaker 1: is highly unusual. Despite all the evidence that dominion has
Speaker 1: put forth, do you think the judge would be reluctant
Speaker 1: to grant a summary judgment motion. Summary judgment motions really
Speaker 1: turn on whether or not there is a genuine material
Speaker 1: issue of disputed fact, and so it's up to the
Speaker 1: judge to decide whether that situation exists. If it does,
Speaker 1: then the case should go to the jury. If the
Speaker 1: judge conclude that there aren't any genuine disputed facts that
Speaker 1: are relevant to how the case ought to be decided,
Speaker 1: and that judge ought to grant the summary judgment motion
Speaker 1: and save everybody at the time and trouble of going
Speaker 1: to dry the damages in this case. Fox said that
Speaker 1: the damages are far more than what dominions worth. They
Speaker 1: have said that, and interestingly they said it on the
Speaker 1: same day that Dominion's summary judgment motion was publicly released,
Speaker 1: and so I think that that was largely a pr offensive.
Speaker 1: It was undoubtedly intended to distract attention away from what
Speaker 1: the evidence in the case showed. But you know, I
Speaker 1: don't think it was particularly effective, and I don't think
Speaker 1: it's necessarily relevant, frankly, because what dominion is worth is
Speaker 1: not really the issue in the case. The issue in
Speaker 1: the case. From a damage's standpoint, as I see it
Speaker 1: is what is the nature of the on going damage
Speaker 1: that Dominion will suffer in the future as a result
Speaker 1: of the conduct by Fox, And that damage is measured
Speaker 1: by who will enter into contracts with Dominion, who is
Speaker 1: already contractually involved with Dominion, but who now are concerned
Speaker 1: about whether Dominion's conduct is appropriate or not. And Foxes
Speaker 1: paper sort of deliberately dance around that question. The question
Speaker 1: of how dominions image will be damaged in the future
Speaker 1: by these allegations, one point eight billion does seem high, though, yeah,
Speaker 1: well it is high. But on the other hand, you know,
Speaker 1: Fox is not a small player, and given that both
Speaker 1: Fox the Fox News network as well as Fox Corp.
Speaker 1: The parent, are defendants, you know it's not necessarily a
Speaker 1: number that would bankrupt the company by any means. And certainly,
Speaker 1: if there were either an adversary judgment ruling or or
Speaker 1: a jury trial verdict that was anywhere close to that,
Speaker 1: I'm quite sure that Fox would be capable of bonding,
Speaker 1: as it would need to around that judgment, allowing them
Speaker 1: and thereby allowing them to appeal it and at least
Speaker 1: postpone for some significant period of time an ultimate day
Speaker 1: of reckoning. So to sum up, tell us how strong
Speaker 1: you think this dominion motion for summary judgment is. I
Speaker 1: think Dominion's motion is both likely to succeed and likely
Speaker 1: to be a landmark in defamation law in the United States.
Speaker 1: The fact is that it is exceedingly rare to have
Speaker 1: the kind of evidence that Dominion has been able to
Speaker 1: accumulate that shows knowledge of falsity and certainly reckless disregard
Speaker 1: for the truth on the part of a news organization
Speaker 1: that has built its reputation upon effectively lying to its viewers.
Speaker 1: And so this, I think is perhaps one of the
Speaker 1: few cases where the standards that are applicable to the
Speaker 1: defamation of public figures, which are and are appropriately extraordinarily high,
Speaker 1: will be met. Thanks for being on the show, Doug,
Speaker 1: that's Douglas Morrell a partner Greenberg Gloscer. The prosecution has
Speaker 1: made a change in its case against Alec Baldwin for
Speaker 1: a fatal shooting on the New Mexico film set of
Speaker 1: The West Rust. Prosecutors have dropped the firearm enhancement, which
Speaker 1: carried a mandatory five years in prison. Baldwin still faces
Speaker 1: involuntary manslaughter charges with a possible eighteen month prison sentence.
Speaker 1: Baldwin has maintained that he's not responsible for the shooting
Speaker 1: of the film. Cinematographer joining me is former prosecutor Joshua Kastenberg,
Speaker 1: a professor at the University of New Mexico Law School.
Speaker 1: Why did the prosecutor drop the firearms enhancement Explain why
Speaker 1: the prosecutor dropped the firearms enhancement charge. The enhanceance law
Speaker 1: came into a fact after the alleged crime occurs, and
Speaker 1: there's a basic constitutional principle that you cannot be charged
Speaker 1: with an ex post facto crime that's the Latin term
Speaker 1: for making something illegal after the fact. And I think,
Speaker 1: basically my sense of what happened is the decision to
Speaker 1: do that enhancement was probably done in the hopes of
Speaker 1: either getting a place or in ignorance of when the
Speaker 1: law came into effect, which is somewhat surprising because prosecutors
Speaker 1: ought to be attuned into when a law comes into being.
Speaker 1: Usually there's an update that occurred. So I think it's
Speaker 1: one of those things that the prosecutor had the eye
Speaker 1: on the ultimate conviction or on a plea deal, rather
Speaker 1: than is this charge the right charge to go forward
Speaker 1: on in every respect. I mean, it may have been
Speaker 1: the right charge to go forward on if it had
Speaker 1: become a law years earlier, but that's not the case here.
Speaker 1: In a statement, the DA spokeswoman said the decision to
Speaker 1: drop the firearm enhancement was made in order to avoid
Speaker 1: further litigious distractions by mister Baldwin and his attorneys. Quote.
Speaker 1: The prosecution's priority is securing justice, not securing billable hours
Speaker 1: for big city attorneys. Two points about that. First, she's
Speaker 1: not admitting she made a mistake, and you don't usually
Speaker 1: see such snarky statements from prosecutors, right so into your
Speaker 1: first point. I was a career prosecutor, but in a
Speaker 1: different jurisdiction. I'm surprised when a prosecutor makes a statement
Speaker 1: like that. You know, sometimes being a prosecutor, like being
Speaker 1: a judge, means you're also a punching bag that does
Speaker 1: not punched back. In this case, the defense council have
Speaker 1: been acting somewhat unusually. They've been restrained because in many
Speaker 1: high profile cases, the defense council go after the prosecutor.
Speaker 1: This is not one of those cases. So I too,
Speaker 1: I'm very surprised at that comment. The second thing I
Speaker 1: would say is, you know, I believe that there's enough
Speaker 1: evidence to go forward on the charge that remains. And
Speaker 1: having said that, what's wrong with just confessing error to
Speaker 1: the public and saying, look, we made a mistake, we
Speaker 1: made a mistake in the way we charge this case.
Speaker 1: We have an interest in doing justice, and doing justice
Speaker 1: means also safeguarding the constitutional rights of the defendant. That's
Speaker 1: not an original comment of mine. Back to the United
Speaker 1: States Supreme Court said that in a case called Burger
Speaker 1: versus the United States back in nineteen thirty five. And
Speaker 1: so I'm surprised, rather than confess and error, say we
Speaker 1: made a mistake of going on the offensive in that manner.
Speaker 1: How big a win is this for Alec balwin that
Speaker 1: this charge was dropped. Well, here's the thing. It's that
Speaker 1: a court win and the sense that it shouldn't have
Speaker 1: gone forward anyway. And my sense is that the judge,
Speaker 1: had the prosecutor not cautious, had the defense not raised
Speaker 1: the issue, the trial judge likely would have raised the
Speaker 1: issue and then it would approved disasters for the prosecutor
Speaker 1: at that point. But what it does, it's an emotional
Speaker 1: win because the general public might be inclined to think, Look,
Speaker 1: if the prosecutor can't get it right at this early
Speaker 1: stage of the trial, what else should we believe about
Speaker 1: this case? Does it change the trajectory of the case. No,
Speaker 1: I don't think it changes the trajectory of the case
Speaker 1: in the sense that both sides gets a void dear
Speaker 1: a jury and in theory, the twelve jurors and the
Speaker 1: alternates that are chosen should have very little knowledge about
Speaker 1: the case to begin with. The jury is not going
Speaker 1: to know that there was a charge that was dropped.
Speaker 1: They're only going to know the charges that are confronting
Speaker 1: mister Baldwin when and if this goes to trial, So
Speaker 1: it doesn't change the trajectory of the case. On the
Speaker 1: other hand, it might actually make the case more simple
Speaker 1: for both sides. And what I mean by that is
Speaker 1: this is a case at its root of criminal negligence,
Speaker 1: and the jury doesn't have to be distracted by more
Speaker 1: than one theory of a charge or multiple charges that
Speaker 1: they have to decide between. Now they're simply deciding on
Speaker 1: one charge. And what is the procect you to have
Speaker 1: to prove to make out that charge? Well, I have
Speaker 1: to prove that an ordinary prudent adult would have X
Speaker 1: size caution and circumspection before pointing the weapon and firing it.
Speaker 1: That mister Baldwin's conduct was so far out of the
Speaker 1: norm that an exceed an ordinary negligence. If you think
Speaker 1: of ordinary negligence, you and I are playing football. We're
Speaker 1: playing catch with a football on a crowded beach. We
Speaker 1: probably shouldn't do it, but so far we haven't hit
Speaker 1: anybody with the football. We've been playing a game of catching,
Speaker 1: and all of a sudden we hit a beachgoer who's
Speaker 1: not aware with the football as an accident. That's ordinary negligence.
Speaker 1: People commit ordinary negligence which could end up in a
Speaker 1: civil court, but they committed every day they bump into
Speaker 1: each other on the sidewalk, you know, they feed on
Speaker 1: the freeway a little bit, not too far above the norm,
Speaker 1: and they get into an accident. Culpable negligence, which is
Speaker 1: the type of negligence that you see in criminal trials
Speaker 1: as a higher burden of proof, and that means that
Speaker 1: an individualist is acting in a risky manner and that
Speaker 1: the end result would be or seeable by an ordinary
Speaker 1: adult of ordinary intelligence and So what the jury is
Speaker 1: going to have to figure out is, did mister Baldwin
Speaker 1: have a duty to independently inspect the gun or in
Speaker 1: some other means make sure it was secured or safeguarded,
Speaker 1: not having live ammunition and not pointing it at an
Speaker 1: individual before firing, you know, having failed to do that.
Speaker 1: And so the jury's going to have to conclude business
Speaker 1: ordinary negligence or was there a heightened duty. Now here's
Speaker 1: the thing with firearms, Unlike walking on the sidewalk, playing
Speaker 1: football on the beach, you know, even driving a car,
Speaker 1: firearms safety isn't a different heightened category. And the prosecutor
Speaker 1: can argue that, the prosecutor can argue that anybody who
Speaker 1: holds the gun has an extra duty of making sure
Speaker 1: they're doing it in a safe manner, and that's fundamentally
Speaker 1: different than you know, an ordinary day to day activity
Speaker 1: of an adult. Then the jury decides whether and just
Speaker 1: this criminal or not. Baldwin continues to insist that while
Speaker 1: he pulled back the hammer on the weapon, he never
Speaker 1: pulled the trigger and apparently the weapon has been tested
Speaker 1: by the FBI, and there's nothing wrong with the weapon.
Speaker 1: If he holds to that, is that an uphill battle
Speaker 1: for him. Well, so I think two points on that.
Speaker 1: One is, you know, the FBI and their crime lab,
Speaker 1: their experts, that's the platinum standard. And I don't know,
Speaker 1: off the top of my head of a better and
Speaker 1: more professional group of individuals than those who work at
Speaker 1: the FBI. Have no idea who handled the weapon at
Speaker 1: the FBI, But the FBI is the top of the
Speaker 1: line in doing this kind of thing. Having said that,
Speaker 1: mister Baldwin may very well believe that he didn't pull
Speaker 1: the trigger and he pulled back the hammer. Human memory
Speaker 1: is fallible. That's why, for example, when a number of
Speaker 1: people see a plane accident who are on the ground,
Speaker 1: the National Transportation Safety Board, when they investigate that accident,
Speaker 1: they don't really take into account eyewitness statement with any
Speaker 1: degree of certainty, because invariably one witness will say the
Speaker 1: tail flew off first, and other I'll say the engines
Speaker 1: dropped off the plane, and a thirdle say it blew up.
Speaker 1: You know, It's how the brain receives information, stores it,
Speaker 1: and processes memory, and it doesn't do a very good
Speaker 1: job of it in stressful conditions. So I think you know,
Speaker 1: in mister Baldwin's mind, the public ought to consider that
Speaker 1: he believes he's telling the truth. The scientific and engineering
Speaker 1: the stem data from the FBI crime lab may very
Speaker 1: well rebut what he believes. The only way normally to
Speaker 1: get his belief to a jury is for him to testify,
Speaker 1: unless the prosecution gets it in, you know, for some
Speaker 1: odd reason they open the door for it. So it
Speaker 1: can come down to this, the experts at the crime
Speaker 1: lab versus the witness, and that's not unheard of in
Speaker 1: criminal trials. The Dad Hutchins widower to a list of
Speaker 1: forty six witnesses. What does that indicate to you? But
Speaker 1: they're still building their case and if a statement was
Speaker 1: made by the deceased for it to be admitted into evidence.
Speaker 1: So there's a rule of evidence that if a witness
Speaker 1: is unavailable because they've died or they can't be reached,
Speaker 1: then their statement may be admissible through a third party.
Speaker 1: The courts are pretty tough on not letting hearsay evidence
Speaker 1: come in. And this Hutchins made a statement and she
Speaker 1: were alive and someone else tried to get it in,
Speaker 1: more often than not it would be hearsay. So my
Speaker 1: sense is that the prosecutor has something that Hutchins said
Speaker 1: that they want to get into evidence and the only
Speaker 1: way to do it is through the person who she
Speaker 1: said it too. There are so many civil lawsuits involved here.
Speaker 1: Do any of those impinge in any way on the
Speaker 1: criminal proceedings? No? Actually, normally, civil lawsuits are held in
Speaker 1: a bayand until a criminal proceeding is done, and attutes
Speaker 1: of limitations on tort suits do not exhaust if they've
Speaker 1: been held in abeyance because of an appending criminal trial.
Speaker 1: And the reason for that is so that civil lawsuits
Speaker 1: do not impinge on a criminal suit. Now, with the
Speaker 1: civil lawsuits, my understanding as depositions may have already been taken,
Speaker 1: interrogatories may have already been accomplished, and so witnesses may
Speaker 1: have already said things that could be used against them
Speaker 1: in a trial or could contradict testimony that they gave
Speaker 1: in the criminal trial, and that puts everybody at rest.
Speaker 1: The Bollwing team is trying to remove the DA from
Speaker 1: the criminal case because she's also an elected New Mexico legislator.
Speaker 1: Does that have legs? You think that is a possibility. Well,
Speaker 1: if the unique argument, it is not by any stretch
Speaker 1: a frivolous argument. It's rooted in the state constitution. It's
Speaker 1: never been brought up as an issue before the courts before.
Speaker 1: We have a part time legislature in New Mexico, so
Speaker 1: it makes it somewhat different than the United States Congress
Speaker 1: and a certain sizable fraction of our legislature our lawyers.
Speaker 1: There was that decision issued by the US Supreme Court
Speaker 1: in nineteen seventy four, making it an old decision about
Speaker 1: the separation of powers and what the courts can and
Speaker 1: can't roll on. That decision had to do with an
Speaker 1: anti war group that was protesting the Vietnam War, latching
Speaker 1: onto a really important provision in the United States Constitution,
Speaker 1: which called the incompatibility Cause. But it basically stands for
Speaker 1: the fact that members of Congress who are elected into
Speaker 1: their office cannot hold executive positions. So you can't serve
Speaker 1: in Congress and be a US ambassador to Russia at
Speaker 1: the same time. You can do one or the other,
Speaker 1: but an ambassador works for the president, and if your
Speaker 1: people have elected you to Congress, you have to be
Speaker 1: independent as a member of Congress. So in that nineteen
Speaker 1: seventy four cases it perculated through the court. Almost every
Speaker 1: judge that touched that case at the district Court, at
Speaker 1: the Court of Appeals, and at the Supreme Court. The
Speaker 1: justices agreed that congressman who held military commissions in the
Speaker 1: reserves and in the National Guards were violating the incompatibility
Speaker 1: clause because when they got called to duty, they were
Speaker 1: in the chain of command of the sitting president and
Speaker 1: therefore we're not independent members of Congress. But then the
Speaker 1: Supreme Court ruled it's a political question, meaning that is
Speaker 1: a decision that can only be answered by Congress itself
Speaker 1: or by the voters. Now this case is somewhat different
Speaker 1: because Alec Baldwin is affected directly, so we have standing
Speaker 1: to bring this issue before the court. But then he
Speaker 1: has to articulate a harm and what is the harm
Speaker 1: to him personally that the special prosecutor the appointment of
Speaker 1: the special prosecutor has to him? I mean, does he
Speaker 1: have a right to choose who's prosecuting him and the
Speaker 1: answers he does it. On the other hand, to the
Speaker 1: people of New Mexico have a right to make sure
Speaker 1: that the three branches of state government are doing their
Speaker 1: jobs in abiding by the Constitution. I think, in a sense,
Speaker 1: the Baldwin defense team has a right idea on the
Speaker 1: state constitution. Having said that, I'm not confident at all
Speaker 1: they'll prevail because they can't really articulate a harm to
Speaker 1: mister Baldwin. Thank you so much. That's Professor Joshua Castenberg
Speaker 1: of the University of New Mexico Law School. You're listening
Speaker 1: to Bloomberg.