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Speaker 1: This is Bloomberg Law with June Brussel from Bloomberg Radio.

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Speaker 1: The Supreme Court gave Democrats a short term win on

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Speaker 1: congressional voting maps this week, but new long term concerns.

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Speaker 1: The Justice is turned down Republican challenges to congressional maps

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Speaker 1: drawn by state courts in Pennsylvania and North Carolina, which

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Speaker 1: could help Democrats when a handful of races in November. However,

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Speaker 1: four conservative justices indicating they want to consider a far

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Speaker 1: reaching legal theory that would shift more federal election power

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Speaker 1: to state legislatures that are now disproportionately controlled by Republicans.

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Speaker 1: Joining me as elections law expert Rick Hassan, a professor

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Speaker 1: at u C Irvine Law School, the maps in North

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Speaker 1: Carolina and Pennsylvania had been drawn by Republican legislatures and

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Speaker 1: replaced by the courts. Why did the courts replays them, Well,

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Speaker 1: the states each have their own constitution, and just like

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Speaker 1: the U. S Constitution, has phrases in it that are

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Speaker 1: pretty vague, like equal protection of the laws that end

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Speaker 1: up being developed into large scale doctrines that courts used

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Speaker 1: to do different things. That's what's happened in these two states.

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Speaker 1: Both the Pennsylvania Supreme Court and the North Kindline Supreme

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Speaker 1: Court read provisions related to elections in their state constitutions

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Speaker 1: to banned partisan jurymandrick. That's draw district lines to favor

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Speaker 1: one side and hurt the other side. So the court

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Speaker 1: left the maps in place. Was that an expected decision

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Speaker 1: under current law? So the kinds of arguments that were

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Speaker 1: being made against the two different states laws, So the

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Speaker 1: court left the maps in place. Was that an expected

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Speaker 1: decision under current law? So the kinds of arguments that

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Speaker 1: were being made against the two different states laws or

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Speaker 1: somewhat different. The claim in Pennsylvania was essentially punted. It

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Speaker 1: was basically that a federal statute required that if the

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Speaker 1: legislature didn't draw lines in a certain way, then you'd

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Speaker 1: have to elect all the members of Congress from the

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Speaker 1: entire state voting. And so that case just got punted

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Speaker 1: and is going to be put before a three judge court,

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Speaker 1: and we'll be back before the Supreme Court at some point.

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Speaker 1: The more immediate interesting case is the North Carolina case,

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Speaker 1: because there we've seen an argument raised that conservatives have

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Speaker 1: been raising for twenty years, more than twenty years since

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Speaker 1: Bush versus Gore, which is that state courts applying state

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Speaker 1: constitutions have very limited powers to apply those state constitutions

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Speaker 1: against state legislatures in federal elections. And that's because of

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Speaker 1: a part of the Constitution that says the state legislatures

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Speaker 1: get to set the rules for running congressional elections subject

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Speaker 1: to congress is override. It's very complicated, called the independent

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Speaker 1: state legislature doctrine, and so far no majority of the

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Speaker 1: Court has accepted it, but there are a number of

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Speaker 1: aicists who have expressed some interest in it. So we're

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Speaker 1: waiting to see what happens ultimately with the resolution of

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Speaker 1: this issue. So in the Carolina case, the courts three

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Speaker 1: most conservative members, Justices Samuel Alito, Clarence Thomas, and Neil

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Speaker 1: gorse It, said they would have blocked the state court

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Speaker 1: from adopting a new map, and they use this independent

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Speaker 1: state legislature doctrine. That's right, And Justice Kavanaugh said, yeah,

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Speaker 1: I think we should take this independent state legislature doctrine seriously.

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Speaker 1: I just think we're too close to the election, which

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Speaker 1: is a point that he's been making in a number

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Speaker 1: of cases recently, saying that federal courts, including the Supreme Court,

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Speaker 1: should not be changing election rules just before an election,

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Speaker 1: But he suggests that if the case came back for

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Speaker 1: a regular hearing, not on an emergency basis, that he'd

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Speaker 1: be willing to hear the case. It only takes four

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Speaker 1: of the nine justices to a pretty hear a case,

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Speaker 1: so it seems pretty likely that this case will ultimately

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Speaker 1: be back for the Supreme Court, maybe to be heard

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Speaker 1: next year, and with the decision a year from June.

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Speaker 1: Just to be clear, it's an unprecedented theory that basically

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Speaker 1: a state judiciary can impose a map for congressional elections

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Speaker 1: even though it finds a map violates the state constitution.

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Speaker 1: The idea is that the state legislature has some kind

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Speaker 1: of independent power, like it's not the state itself, it's

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Speaker 1: the legislature as a body, and that the state legislature

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Speaker 1: can trump even the state constitution as applied by the

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Speaker 1: state legislature. The argument has been around for a while.

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Speaker 1: In Bush versus Gore, which was the case that ended

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Speaker 1: the two thousand election, the majority opinion for the court

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Speaker 1: said that the recount that had been ordered by the

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Speaker 1: Florida Supreme Court violated equal protection or to process guarantees,

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Speaker 1: but there was a separate three justice concurren written by

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Speaker 1: then Chief Justice William Rehnquist and joined by Justice Thomas

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Speaker 1: and Scalia that advanced this theory and said that there

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Speaker 1: was a separate problem with the order to do these recounts,

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Speaker 1: which was that it was ordered in violation of what

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Speaker 1: the state legislative statute said, and you can't do it

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Speaker 1: in reliance on the state constitution. So that's really kind

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Speaker 1: of the modern origin of this argument. The Court has

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Speaker 1: rejected very similar arguments in other cases, including as most

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Speaker 1: recently a case in involving whether Arizona voters could adopt

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Speaker 1: a registricting commission to draw district lines for Congress rather

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Speaker 1: than letting the legislature do it, and on a five

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Speaker 1: to four vote, the Supreme courts that we don't read

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Speaker 1: legislature as narrowly at the Arizona legislature was arguing that

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Speaker 1: was a five to four decision two of the justices

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Speaker 1: soon to be three of the justices, and that majority

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Speaker 1: will have left the Court by the time that this

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Speaker 1: issue returns to the Supreme Court, presumably in the North

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Speaker 1: Carolina case, and Chief Justice Roberts, who was the chief

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Speaker 1: dissenter in that two thousands fifteen Arizona case, could well

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Speaker 1: find himself having to choose between following a precedent he

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Speaker 1: doesn't like or agreeing with at least three or four

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Speaker 1: of his colleagues, two of them were not in the

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Speaker 1: court of the time, and who seemed to agree with

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Speaker 1: the position he took back in this independent state legislature doctrine,

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Speaker 1: if the Court were to adopt it, that would be

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Speaker 1: contrary to precedent. Well, the issues are not exactly the same,

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Speaker 1: because in that fifteen case, for example, the question is

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Speaker 1: whether you could use the initiative process to displace the legislature.

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Speaker 1: In this case, the question is whether state court supplying

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Speaker 1: state constitutions can supplement what the legislature has done. There

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Speaker 1: related questions, but they're not quite exactly the same. But

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Speaker 1: there are precedents going back a hundred years where the

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Speaker 1: court has rejected this kind of argument in different contexts,

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Speaker 1: but it hasn't gotten a full airing in the modern

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Speaker 1: period other than in that Arizona case. And we don't

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Speaker 1: know if precedents is going to stick in that Arizona case.

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Speaker 1: So let me ask you this, why are conservatives pushing

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Speaker 1: it and why are the three at least the three

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Speaker 1: dissenters seemingly in favor of it, and perhaps Kavana as well. Well.

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Speaker 1: Now you're getting really interesting questions. So both Pennsylvania and

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Speaker 1: North Carolina have the following political configuration. They have legislatures

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Speaker 1: that are dominated by Republicans in part because of earlier

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Speaker 1: Publican jerrymagers. They've got democratic governors, and they've got democratic

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Speaker 1: majority Supreme Court, that is Supreme Court with justices who

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Speaker 1: were either nominated or favored by the Democratic Party. And

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Speaker 1: so in each of these dates, you have a Democratic

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Speaker 1: Supreme Court saying that the Republican jerrymanager is no good.

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Speaker 1: And now you have these conservative justices on the Supreme

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Speaker 1: Court disagreeing with the Democratic States Supreme Court and agreeing

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Speaker 1: with the Republican legislature and potentially allowing them to continue

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Speaker 1: for another decade with a partisan cherry managing of district.

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Speaker 1: And it's kind of builds on itself, right, because you

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Speaker 1: end up adopting rules through a body that had been

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Speaker 1: elected under rules that have been manipulated by the earlier body,

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Speaker 1: and so it creates a kind of feedback. And so

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Speaker 1: there's both kind of an ideological understanding of this like,

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Speaker 1: let's read the word legislature very literally in the text

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Speaker 1: of the Constitution. But there's also a political aspect of this,

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Speaker 1: which is, let's give the Republican legislature a chance to

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Speaker 1: do what it wants to do and not let the

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Speaker 1: democratic state Supreme Court ring them in. The Supreme Court

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Speaker 1: has all cut off certain ways to challenge election laws

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Speaker 1: election districts, and in twenty nine when they close federal

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Speaker 1: courts to claims of partisan gerrymandering, the Chief Justice wrote

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Speaker 1: that those claims could get through state courts, right, right,

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Speaker 1: So there's an inconsistency there in terms of In Rouco,

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Speaker 1: the case you're referring to, the Court said, but you

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Speaker 1: could always go to state court. Now, maybe you could

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Speaker 1: reconcile that by saying, but that's only true as to

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Speaker 1: preventing gerrymandering of state legislative districts and not congressional districts.

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Speaker 1: But the congressional power is different when it comes to

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Speaker 1: federal elections, and state power is different when it comes

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Speaker 1: to federal election So it's sufficiently uncertain that I think

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Speaker 1: the Supreme Court is going to have to resolve it,

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Speaker 1: and likely in the North Carolina case and in a way.

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Speaker 1: That would be a very good thing for it to

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Speaker 1: be resolved one way or the other, because this issue

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Speaker 1: did appear as well in the presidential election, and it

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Speaker 1: would have been really a mess for the Supreme Court

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Speaker 1: to adopt a new, very controversial doctrine that could have

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Speaker 1: helped determine the outcome of the presidential election itself. So, Rick,

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Speaker 1: does it mean that if there are claims of partisan gerrymandering,

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Speaker 1: if they adopted this, there's no appeal to federal court

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Speaker 1: and there's no appeal to state court either. As to

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Speaker 1: a congressional district, there would be no appeal. Is that

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Speaker 1: what the Framers would have wanted? Well, I don't know

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Speaker 1: that that's the question, but I think you would argue

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Speaker 1: that's not what the Framers want. Didn't The better historical

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Speaker 1: evidence is that this independent state legislature theory is is

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Speaker 1: something that is not in line with original understanding of

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Speaker 1: the Constitution. And I'm sure that there's going to be

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Speaker 1: a lot of arguments aimed at Justice Amy Coney Barrett,

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Speaker 1: who is an originalist who has not weighed in on

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Speaker 1: this question, and who might care about that historical record

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Speaker 1: for textualists originalists on the Court which is the better

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Speaker 1: interpretation according to your thinking. Well, I think that UM,

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Speaker 1: the richer understanding of the constitution would reject this very

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Speaker 1: strong independent state legislature doctrine and understand the state legislature

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Speaker 1: is act within the context of their own UM state laws,

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Speaker 1: including state Supreme courts supplying state constitutions, and the claim

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Speaker 1: in North Carolina to me is exceptionally weak because the

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Speaker 1: provision of the state constitution that guarantees these voting rights

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Speaker 1: was actually one that the state legislature had approved in

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Speaker 1: nine when it had amended its constitutions. So there's all

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Speaker 1: kinds of reasons why, UM, the North Carolina General Assembly,

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Speaker 1: that's the legislative body there should lose. In UM, this

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Speaker 1: case shouldn't come back to the Supreme Court. But I'm

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Speaker 1: not at all confident that they will lose. I just

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Speaker 1: think that they should finally, so the Democrats win here

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Speaker 1: in the short term, but now this is something that

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Speaker 1: they should be concerned about in the long term. Oh,

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Speaker 1: I think absolutely, yes. This is something that really could

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Speaker 1: have impact beyond redistricting as well. It could apply anytime

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Speaker 1: a state legislature's rule is challenged as violating a state

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Speaker 1: constitutional provision. And it's going to be applied in the

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Speaker 1: federal election. Thanks so much for lending us your expertise. Rick.

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Speaker 1: That's Rick Casson, a professor at you see Irvine Law School.

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Speaker 1: When I put my hand on the Bible and took

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Speaker 1: the oath of office twenty two months ago, I knew

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Speaker 1: this job would be hard, but I'll be honest, I

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Speaker 1: never could have imagined anything like this. I want to

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Speaker 1: start by saying thank you to our law enforcement. Thank

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Speaker 1: you to the fearless FBI agents, and thank you to

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Speaker 1: the brave Michigan State Police troopers who participated in this operation.

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Speaker 1: That was Michigan Governor Gretchen Whitmer in October of last year,

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Speaker 1: talking about the plot to kidnap her. Today, trial began

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Speaker 1: for four men accused of conspiring to kidnap Whittmer and

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Speaker 1: conspiring to use a weapon of mass destruction. The focus

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Speaker 1: of the trial quickly turned to the question of whether

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Speaker 1: the FBI tricked and cajole the defendants into agreeing to

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Speaker 1: the kidnap plot. Joining me is former u US Attorney

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Speaker 1: for Eastern Michigan Matthew Schneider, a partner at Honigman So

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Speaker 1: described the crime alleged here and the atmosphere in Michigan

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Speaker 1: at the time, So the atmosphere in Michigan was of

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Speaker 1: course COVID restrictions, and that was happening all across the country,

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Speaker 1: and there were a number of different types of events

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Speaker 1: that happened in Michigan that were very extreme, which were

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Speaker 1: locked downs there. It started with people not being able

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Speaker 1: to go to the store or go to work, and

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Speaker 1: then eventually it became that you could stand out in

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Speaker 1: your house, but you couldn't talk to your neighbors, and

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Speaker 1: then even that shut off, and so there were a

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Speaker 1: lot of restrictions and people felt very strongly about that.

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Speaker 1: And as the course of these restrictions built, a lot

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Speaker 1: of public sentiment built one way or the other, either

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Speaker 1: in support of Governor Whitmer or against Governor Whitmer. And

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Speaker 1: as we found out that at this time, these defendants

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Speaker 1: in this case were on the very very supposed to

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Speaker 1: Governor Whittmer's restrictions. And the allegations in this case are

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Speaker 1: that they decided that they would take matters into their

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Speaker 1: own hands, and instead of most Americans complaining about it,

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Speaker 1: writing letters to the newspaper or talking to folks and

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Speaker 1: being upset. The allegation here is that they put together

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Speaker 1: a conspiracy plot and they thought the one way that

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Speaker 1: we could do this is that we would kidnap the

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Speaker 1: governor and we would take her hostage, and we would

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Speaker 1: use weapons to do that, and they felt that that's

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Speaker 1: the way that they would get their point across. Of course,

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Speaker 1: they're innocent until proven guilty, and the trials just started,

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Speaker 1: but that is the allegation in this case. So tell

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Speaker 1: us if anything unusual happened during jury selection. You know,

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Speaker 1: it's interesting because the jury pool is is from West Michigan,

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Speaker 1: which is not necessarily a strong point for Governor Whittmer

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Speaker 1: as it was, but I think at the end of

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Speaker 1: the day, there should be a fair jury here. But

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Speaker 1: we don't really know a lot about some of these

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Speaker 1: jurors because they ended the jury selection without asking a

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Speaker 1: lot of questions about some of them, just kind of

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Speaker 1: their background and whether they could could do it, but

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Speaker 1: not much detail. So some of this is a little unknown.

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Speaker 1: One aspect of this jury selection that I found very

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Speaker 1: concerning myself was people were asked, as with any other

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Speaker 1: jury selection, can you be fair, And a number of

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Speaker 1: people said, I can't be fair? In this case, because

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Speaker 1: I really dislike Governor Whitmer, and I can't be fair. Well,

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Speaker 1: you know that what that said to me is a

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Speaker 1: lot of people dislike Governor Whittmer. That's fine, she's a

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Speaker 1: political figure, and that's okay. But when somebody says I

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Speaker 1: dislike her so much that maybe I'm sympathetic to somebody

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Speaker 1: who wants to kidnap her, I found that to be

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Speaker 1: quite disturbing, because in this country, we're not supposed to

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Speaker 1: settle our political differences through violence. We're supposed to settle

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Speaker 1: them at the ballot box. And at least some people

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Speaker 1: on this or who were excused, tip their hands to

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Speaker 1: the fact that they thought that violence in response to

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Speaker 1: political disagreements might be okay, and that that's something that

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Speaker 1: should trouble all of us. So let's talk about the

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Speaker 1: opening statements. Let's start with the prosecution. It featured what

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Speaker 1: sounds like some wild tales. Yes, the prosecution had a

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Speaker 1: strong opening in my view, and they explained the time

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Speaker 1: and the timeline and the chronology about what happened and

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Speaker 1: how these defendants got together, and they started talking about

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Speaker 1: different ways that they could rebel against the government and

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Speaker 1: Michigan and then they started to train together and they

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Speaker 1: started to use assault rifles. Some of them had been

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Speaker 1: doing this for a while, but they started to take

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Speaker 1: target practice, and the FBI infiltrated this group, and the

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Speaker 1: discussion went more instead of here's the types of things

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Speaker 1: we could do, here are the actions that we could take.

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Speaker 1: And then the government alleges that they actually started to

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Speaker 1: take these steps. So it's one thing to say, I

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Speaker 1: think what we need to do is go to the

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Speaker 1: governor's house and surveil it. In this case, the evidence

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Speaker 1: is going to show that the defendants, some of them,

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Speaker 1: actually did that. They went to the governor's house. And

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Speaker 1: you know, it's another thing to say, well, we should

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Speaker 1: buy some explosives so that we could detonate it near

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Speaker 1: the governor's house. Talk is one thing, but the evidence

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Speaker 1: in this case, the government says, is they're going to

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Speaker 1: show that they tried to buy these explosives, and some

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Speaker 1: explosives they did buy, and the point was they really

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Speaker 1: wanted to put their money where their mouth was. And

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Speaker 1: so that's the case that the government has laid out

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Speaker 1: that they actually took some actions. They took these overt acts,

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Speaker 1: these steps, and further into the conspiracy and that's why

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Speaker 1: the government believes that they should be found guilty. So

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Speaker 1: the defense raised the defense of entrapment. They said that

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Speaker 1: the FBI tricked the defendants into agreeing to the plot

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Speaker 1: to kidnap Witner, and the FBI drove the whole thing.

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Speaker 1: So tell us about that defense. So what we know

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Speaker 1: so far is that the defense, originally in the opening

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Speaker 1: statements didn't really touch this entrapment. They just kind of

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Speaker 1: nibbled around the edges. At some point in the openings

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Speaker 1: it became clear that that's really what they were talking about,

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Speaker 1: and an entrapment defense is saying, essentially, I'm not the

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Speaker 1: one who came up with this idea, I'm not the

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Speaker 1: one who really wanted to do this, and but for

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Speaker 1: the government, I wouldn't have done this. I wouldn't have

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Speaker 1: tried to put this plan into place except for the

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Speaker 1: government goading me on. And some of these defendants have

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Speaker 1: said that they really had no experience in tactical training

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Speaker 1: and using weapons. But Dan, this undercover FBI informant, is

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Speaker 1: the one who trained them, and he's the one who

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Speaker 1: encouraged them. So that's the entrapment defense, and the government

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Speaker 1: of course and is going to use the jury instruction

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Speaker 1: for entrapment, and there are signs in there the government

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Speaker 1: can point to to say that you weren't entrapped, And

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Speaker 1: that's really based on the fact that the defendants were

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Speaker 1: what they call predisposed to commit the crime. That means

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Speaker 1: they already had this thought in their mind before the

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Speaker 1: government introduced the undercover agents. And under the law, if

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Speaker 1: you have that predisposition, then entrapment is not a valid defense.

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Speaker 1: Is it a high risk strategy to defend based on

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Speaker 1: entrapment because you're conceding that some crimes may have been committed.

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Speaker 1: It is because it's an infirmative defense where you you

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Speaker 1: have to admit to certain things, but say, similar to

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Speaker 1: self defense, say I did this. However, now it's important

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Speaker 1: to note that as this trial has played out, it's

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Speaker 1: not as clear cut as the government has thought, in

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Speaker 1: my opinion, because entrapment is not the only defense. There's

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Speaker 1: a separate defense that is being laid out by at

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Speaker 1: least one of the defendants to say that this is

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Speaker 1: all really big talk. We did not intend this, but

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Speaker 1: we talked really big and we came up with some

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Speaker 1: wild ideas. And the defense is going to explain the

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Speaker 1: fact that we talked about, what are some ways we

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Speaker 1: could go and take out Governor Whitmer. Well, one way

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Speaker 1: is we could all sneak over to her house and

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Speaker 1: we could hide in the woods and we could bark

338
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Speaker 1: like animals, and then she would come out, because she

339
00:19:23,000 --> 00:19:26,840
Speaker 1: cares about animals. Another thing that they talked about was, well,

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Speaker 1: we could cut all the trees down between Indiana and Michigan,

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Speaker 1: because that would create a stir and would prevent people

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Speaker 1: from getting into the state. Or we could tie a

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Speaker 1: kite to the governor and flyer over Lake Michigan. Now

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Speaker 1: that's all nonsense, right, that's not going to work. And

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Speaker 1: the defense in this case is, look, they said all

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Speaker 1: these things when they were drunken, when they were stoned.

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Speaker 1: Another thing that they said was we're going to kidnap her,

348
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Speaker 1: and so all of this is in one big pot.

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Speaker 1: We didn't mean it, and it's all just a bunch

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Speaker 1: of big talk, and therefore their strategy is we're big talkers,

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Speaker 1: we didn't mean it, we couldn't actually accomplish this, and

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Speaker 1: you should find us not guilty. The fact that there

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Speaker 1: are four defendants here are their defenses. United You said

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Speaker 1: that one of the defense attorneys brought up this crazy talk.

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Speaker 1: So how does it play that there are four of them?

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Speaker 1: So there's four defendants and each of them gets an

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Speaker 1: opportunity to speak as questions, give their opening statements. That's

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Speaker 1: how the openings played out. Now, let's see what happens

359
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Speaker 1: in the closings. Right, are they all going to last

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00:20:30,119 --> 00:20:32,520
Speaker 1: on to that defense? Will they all be in the

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Speaker 1: entrapment defense that we know all four of them have

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Speaker 1: already said, well, we'll plead entrapment. But will they all

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Speaker 1: argue these other kind of stoned, crazy delusions and that's

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Speaker 1: why we did it? Will they argue that that really

365
00:20:45,160 --> 00:20:47,439
Speaker 1: remains to be seen And we won't know for weeks

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Speaker 1: because this trial will probably take at least four to

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Speaker 1: six weeks to get through. But will the jury distinguish

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Speaker 1: one defendant from the other for something like if they're

369
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Speaker 1: sitting there and it's this wild talk plan to you know,

370
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Speaker 1: put a kite on Whittner, whatever, will the jury really

371
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Speaker 1: distinguish one from the other or will the defense is

372
00:21:09,320 --> 00:21:14,080
Speaker 1: sort of bleed into one another. So normally juries do

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Speaker 1: take the time and effort to go one by one

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Speaker 1: through each defendant and find this defendant with these elements

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Speaker 1: either did or did not commit this crime, and there

376
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Speaker 1: will be plenty of time for jury deliberations to do that.

377
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Speaker 1: Sometimes people fear that if you're if you're in a

378
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Speaker 1: group of people who are committing crimes, and then there's

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Speaker 1: guilt by association. I have found in my experience that

380
00:21:36,520 --> 00:21:39,560
Speaker 1: jurors are are quite smart, they're quite intelligent, and they're

381
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Speaker 1: able to parse out who did what and who did

382
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Speaker 1: not do what. So I think we'll we'll be able

383
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Speaker 1: to see a jury that is able to do that.

384
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Speaker 1: Let's talk about some of the witnesses. Two insiders who

385
00:21:52,000 --> 00:21:56,119
Speaker 1: turned state's evidence seem to be important for the government.

386
00:21:57,119 --> 00:22:00,879
Speaker 1: That's true. So there are two defendants who were charged

387
00:22:00,920 --> 00:22:03,720
Speaker 1: in this case, but they've pleaded guilty and now they're

388
00:22:03,760 --> 00:22:07,560
Speaker 1: cooperating for the government, and they've committed crimes and they

389
00:22:07,800 --> 00:22:10,720
Speaker 1: are going to admit that and explain what happened. And

390
00:22:10,760 --> 00:22:13,560
Speaker 1: the government's theory in this is that the best way

391
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Speaker 1: to know what happens in a secret conspiracy is to

392
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Speaker 1: actually get one of the members of the conspiracy to

393
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Speaker 1: come out and explain what happened. And these people were

394
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Speaker 1: insiders who can say I was in that room. I

395
00:22:25,760 --> 00:22:28,560
Speaker 1: was part of those conversations. I know what happened, and

396
00:22:28,600 --> 00:22:32,359
Speaker 1: here's and here's what actually took place. The defense on

397
00:22:32,440 --> 00:22:36,000
Speaker 1: these types of cases is always the same. You're a liar,

398
00:22:36,240 --> 00:22:39,439
Speaker 1: and the reason why you're testifying is for one reason,

399
00:22:39,760 --> 00:22:41,879
Speaker 1: and that's because you've been convicted of a crime. And

400
00:22:41,880 --> 00:22:45,280
Speaker 1: if you testify and you give the government what they want,

401
00:22:45,320 --> 00:22:47,400
Speaker 1: then they will give you a break, and they will

402
00:22:47,440 --> 00:22:49,679
Speaker 1: cut your sentence and they will reduce the amount of

403
00:22:49,680 --> 00:22:51,679
Speaker 1: time that you have to spend in prison, if you

404
00:22:51,760 --> 00:22:54,160
Speaker 1: even go to prison. And so the defense will paint

405
00:22:54,200 --> 00:22:57,959
Speaker 1: them as people who are opportunistic, only there for their

406
00:22:58,000 --> 00:23:01,160
Speaker 1: own agenda, who already have a criminal history, and who

407
00:23:01,160 --> 00:23:03,439
Speaker 1: were people who want to break and they're going to

408
00:23:03,440 --> 00:23:06,199
Speaker 1: portray them as not truthful, and the government's going to

409
00:23:06,240 --> 00:23:09,960
Speaker 1: have to come back and rehabilitate them and say that, look,

410
00:23:10,000 --> 00:23:11,640
Speaker 1: you swar an oath to tell the truth, and that's

411
00:23:11,640 --> 00:23:14,399
Speaker 1: what you're doing. Is that correct? And that's what they're

412
00:23:14,440 --> 00:23:18,120
Speaker 1: going to rely on. There was an undercover in this.

413
00:23:18,760 --> 00:23:21,720
Speaker 1: It was a former Wolverine watchman who got upset and

414
00:23:21,760 --> 00:23:23,960
Speaker 1: he went to the FBI and agreed to go undercover.

415
00:23:25,080 --> 00:23:26,920
Speaker 1: It does it seem as if the defense is going

416
00:23:27,000 --> 00:23:29,679
Speaker 1: to try to put a lot of the blame for

417
00:23:29,720 --> 00:23:34,840
Speaker 1: this on him, that he was leading them. Oh? Absolutely,

418
00:23:34,840 --> 00:23:37,800
Speaker 1: and that's really universal that that came out from all

419
00:23:37,840 --> 00:23:40,520
Speaker 1: of the defendants. They placed a lot of blame on

420
00:23:40,560 --> 00:23:44,440
Speaker 1: the FBI informant named Dan is the person who's really

421
00:23:44,480 --> 00:23:47,919
Speaker 1: responsible for this. And what they say is Dan was

422
00:23:47,960 --> 00:23:50,359
Speaker 1: a paid informant from the FBI and was getting a

423
00:23:50,400 --> 00:23:53,640
Speaker 1: paycheck from the FBI and was meeting with these folks

424
00:23:54,040 --> 00:23:58,400
Speaker 1: and nothing was really producing. The defendants weren't committing any crimes.

425
00:23:59,000 --> 00:24:02,520
Speaker 1: Dan wasn't getting in a result. And Dan realized, I

426
00:24:02,600 --> 00:24:04,560
Speaker 1: need to up my game here because I'm going to

427
00:24:04,640 --> 00:24:07,160
Speaker 1: get my paychecks cut off from the government. They'll stop

428
00:24:07,200 --> 00:24:11,120
Speaker 1: paying me unless I produce. And so the defense argument

429
00:24:11,200 --> 00:24:14,600
Speaker 1: is that's what Dan did. Dan kicked it into high year.

430
00:24:15,000 --> 00:24:17,920
Speaker 1: Dan decided to have more meetings with the defendants. Dan

431
00:24:18,200 --> 00:24:22,440
Speaker 1: brought the defendants into training, all this paramilitary training. Dan

432
00:24:22,520 --> 00:24:25,479
Speaker 1: has a former military background, so he's the one who

433
00:24:25,520 --> 00:24:29,000
Speaker 1: actually taught them. And Dan was okay with these people using,

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00:24:29,240 --> 00:24:32,560
Speaker 1: you know, using drugs and smoking marijuana and doing those things.

435
00:24:32,600 --> 00:24:36,320
Speaker 1: And Dan is the one who really planted these seeds

436
00:24:36,720 --> 00:24:39,919
Speaker 1: and got them going. That is exactly what their defense

437
00:24:40,040 --> 00:24:42,800
Speaker 1: is in this case. So let's talk a little bit

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00:24:42,800 --> 00:24:46,879
Speaker 1: about domestic terrorism, which you know we see here, we

439
00:24:46,960 --> 00:24:50,520
Speaker 1: see it in the January six insurrection. Is that a

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00:24:50,560 --> 00:24:54,800
Speaker 1: problem that the government is tackling? It is? In general?

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00:24:54,880 --> 00:24:57,960
Speaker 1: I think this case is much more about COVID restrictions

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00:24:58,000 --> 00:25:01,560
Speaker 1: than it is about any other type of extremism. I mean,

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00:25:01,880 --> 00:25:04,760
Speaker 1: that's what all of the sides have said in this case.

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00:25:04,840 --> 00:25:08,240
Speaker 1: They've said, Look, during the time of the pandemic, everybody

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00:25:08,280 --> 00:25:11,320
Speaker 1: was mad about the COVID restrictions. The government and the

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00:25:11,359 --> 00:25:14,879
Speaker 1: defense they all can agree about that. And the issue

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00:25:15,000 --> 00:25:18,639
Speaker 1: is really not about whether it happened. It's to what

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00:25:18,880 --> 00:25:23,240
Speaker 1: extent did the defendants take that restriction and and did

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00:25:23,280 --> 00:25:27,120
Speaker 1: they decide to instead of internalize it, to externalize it. Now,

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00:25:27,560 --> 00:25:32,159
Speaker 1: domestic extremism terrorism, as you say, that takes all different

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00:25:32,200 --> 00:25:34,919
Speaker 1: types of forms. But I think what is fair to

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00:25:34,920 --> 00:25:37,879
Speaker 1: say in this case, if there hadn't been a pandemic

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00:25:38,080 --> 00:25:41,359
Speaker 1: and there hadn't been COVID restrictions, this case might not

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00:25:41,440 --> 00:25:43,919
Speaker 1: have played out this way, because it really is based

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00:25:43,920 --> 00:25:47,359
Speaker 1: on that. As far as domestic extremism goes those cases

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00:25:47,359 --> 00:25:49,640
Speaker 1: are going to be going on in the future, whether

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00:25:49,760 --> 00:25:53,680
Speaker 1: or not there's a pandemic. When you hear militia too

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00:25:53,720 --> 00:25:58,439
Speaker 1: many of us, that sounds dangerous and a lot of

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00:25:58,480 --> 00:26:03,960
Speaker 1: these extremists are associated with militia. Is that an incorrect assumption.

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00:26:04,680 --> 00:26:08,400
Speaker 1: I think it is because in this jury pool, militias

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00:26:08,440 --> 00:26:13,439
Speaker 1: are often associated with firearms, and the questions were asked

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00:26:13,480 --> 00:26:17,720
Speaker 1: about firearms and association with militias and people with firearms.

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00:26:17,800 --> 00:26:19,680
Speaker 1: And I don't know how it is in other parts

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00:26:19,680 --> 00:26:21,960
Speaker 1: of the country, but it was fairly normal when this

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00:26:22,080 --> 00:26:25,680
Speaker 1: jury was asked, does anybody own a firearm? And virtually

466
00:26:25,720 --> 00:26:28,560
Speaker 1: everybody in the jury pool said yes. And then they

467
00:26:28,600 --> 00:26:31,440
Speaker 1: were asked, who owns more than five? Many people did,

468
00:26:31,680 --> 00:26:34,919
Speaker 1: who owns more than ten? Some people did, who owns

469
00:26:34,960 --> 00:26:38,040
Speaker 1: more than twenty? And people on the jury who were

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00:26:38,119 --> 00:26:41,000
Speaker 1: in the jury pool, maybe not actually selected, some of

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00:26:41,040 --> 00:26:45,160
Speaker 1: them owned more than twenty firearms. Michigan is a hunting state.

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00:26:45,480 --> 00:26:48,480
Speaker 1: It's a state that uses firearms for sport and for

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00:26:48,560 --> 00:26:52,520
Speaker 1: target shooting, and it's a state that we're militia type

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00:26:52,560 --> 00:26:56,800
Speaker 1: activities who also used firearms. It is part of the state,

475
00:26:57,280 --> 00:26:59,479
Speaker 1: it's part of the culture. In many ways to have

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00:26:59,520 --> 00:27:03,280
Speaker 1: firearms here and so as opposed to some other locations.

477
00:27:03,720 --> 00:27:06,480
Speaker 1: Really isn't too surprising that some of the jurors in

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00:27:06,480 --> 00:27:09,359
Speaker 1: this case actually would have fire arms of their own.

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00:27:09,920 --> 00:27:12,640
Speaker 1: Thanks so much for being on the show, Matthew. That's

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00:27:12,680 --> 00:27:16,040
Speaker 1: former U S Attorney for Eastern Michigan Matthew Schneider, a

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00:27:16,119 --> 00:27:18,600
Speaker 1: partner at Honigmanton. And that's it for this edition of

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00:27:18,640 --> 00:27:21,159
Speaker 1: The Bloomberg Law Show. Remember you can always get the

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00:27:21,240 --> 00:27:24,240
Speaker 1: latest legal news on our Bloomberg Law Podcast. You can

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Speaker 1: find them on Apple Podcasts, Spotify, and wherever you get

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Speaker 1: your favorite podcasts. And don't forget to tune into The

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Speaker 1: Bloomberg Law Show every weeknight at ten pm Wall Street

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Speaker 1: you're listening to Bloomberg