WEBVTT - Short-Term SCOTUS Win for Democrats, Long Term Worry 0:00:03.200 --> 0:00:07.960 This is Bloomberg Law with June Brussel from Bloomberg Radio. 0:00:10.840 --> 0:00:14.120 The Supreme Court gave Democrats a short term win on 0:00:14.200 --> 0:00:18.640 congressional voting maps this week, but new long term concerns. 0:00:19.079 --> 0:00:23.080 The Justice is turned down Republican challenges to congressional maps 0:00:23.160 --> 0:00:27.240 drawn by state courts in Pennsylvania and North Carolina, which 0:00:27.240 --> 0:00:31.360 could help Democrats when a handful of races in November. However, 0:00:31.480 --> 0:00:35.560 four conservative justices indicating they want to consider a far 0:00:35.640 --> 0:00:39.400 reaching legal theory that would shift more federal election power 0:00:39.479 --> 0:00:44.320 to state legislatures that are now disproportionately controlled by Republicans. 0:00:44.840 --> 0:00:48.280 Joining me as elections law expert Rick Hassan, a professor 0:00:48.320 --> 0:00:51.760 at u C Irvine Law School, the maps in North 0:00:51.800 --> 0:00:56.840 Carolina and Pennsylvania had been drawn by Republican legislatures and 0:00:57.000 --> 0:01:02.040 replaced by the courts. Why did the courts replays them, Well, 0:01:02.200 --> 0:01:06.920 the states each have their own constitution, and just like 0:01:07.080 --> 0:01:10.840 the U. S Constitution, has phrases in it that are 0:01:10.920 --> 0:01:13.480 pretty vague, like equal protection of the laws that end 0:01:13.560 --> 0:01:18.240 up being developed into large scale doctrines that courts used 0:01:18.240 --> 0:01:21.760 to do different things. That's what's happened in these two states. 0:01:21.760 --> 0:01:25.080 Both the Pennsylvania Supreme Court and the North Kindline Supreme 0:01:25.080 --> 0:01:28.880 Court read provisions related to elections in their state constitutions 0:01:28.920 --> 0:01:32.920 to banned partisan jurymandrick. That's draw district lines to favor 0:01:33.000 --> 0:01:36.600 one side and hurt the other side. So the court 0:01:36.760 --> 0:01:41.039 left the maps in place. Was that an expected decision 0:01:41.200 --> 0:01:44.959 under current law? So the kinds of arguments that were 0:01:45.000 --> 0:01:49.080 being made against the two different states laws, So the 0:01:49.160 --> 0:01:53.360 court left the maps in place. Was that an expected 0:01:53.440 --> 0:01:57.640 decision under current law? So the kinds of arguments that 0:01:57.680 --> 0:02:01.240 were being made against the two different states laws or 0:02:01.360 --> 0:02:06.040 somewhat different. The claim in Pennsylvania was essentially punted. It 0:02:06.120 --> 0:02:09.160 was basically that a federal statute required that if the 0:02:09.240 --> 0:02:11.560 legislature didn't draw lines in a certain way, then you'd 0:02:11.560 --> 0:02:14.080 have to elect all the members of Congress from the 0:02:14.280 --> 0:02:17.200 entire state voting. And so that case just got punted 0:02:17.320 --> 0:02:19.600 and is going to be put before a three judge court, 0:02:19.639 --> 0:02:21.720 and we'll be back before the Supreme Court at some point. 0:02:21.800 --> 0:02:25.440 The more immediate interesting case is the North Carolina case, 0:02:25.639 --> 0:02:29.280 because there we've seen an argument raised that conservatives have 0:02:29.320 --> 0:02:32.079 been raising for twenty years, more than twenty years since 0:02:32.080 --> 0:02:35.560 Bush versus Gore, which is that state courts applying state 0:02:35.600 --> 0:02:41.440 constitutions have very limited powers to apply those state constitutions 0:02:41.480 --> 0:02:44.679 against state legislatures in federal elections. And that's because of 0:02:44.680 --> 0:02:47.000 a part of the Constitution that says the state legislatures 0:02:47.120 --> 0:02:50.520 get to set the rules for running congressional elections subject 0:02:50.600 --> 0:02:54.040 to congress is override. It's very complicated, called the independent 0:02:54.080 --> 0:02:57.200 state legislature doctrine, and so far no majority of the 0:02:57.240 --> 0:02:59.760 Court has accepted it, but there are a number of 0:03:00.000 --> 0:03:02.280 aicists who have expressed some interest in it. So we're 0:03:02.280 --> 0:03:05.320 waiting to see what happens ultimately with the resolution of 0:03:05.320 --> 0:03:08.359 this issue. So in the Carolina case, the courts three 0:03:08.400 --> 0:03:13.320 most conservative members, Justices Samuel Alito, Clarence Thomas, and Neil 0:03:13.400 --> 0:03:16.080 gorse It, said they would have blocked the state court 0:03:16.120 --> 0:03:19.239 from adopting a new map, and they use this independent 0:03:19.440 --> 0:03:23.959 state legislature doctrine. That's right, And Justice Kavanaugh said, yeah, 0:03:23.960 --> 0:03:27.040 I think we should take this independent state legislature doctrine seriously. 0:03:27.360 --> 0:03:29.240 I just think we're too close to the election, which 0:03:29.240 --> 0:03:30.760 is a point that he's been making in a number 0:03:30.800 --> 0:03:33.880 of cases recently, saying that federal courts, including the Supreme Court, 0:03:33.919 --> 0:03:36.640 should not be changing election rules just before an election, 0:03:36.880 --> 0:03:38.920 But he suggests that if the case came back for 0:03:38.960 --> 0:03:41.680 a regular hearing, not on an emergency basis, that he'd 0:03:41.680 --> 0:03:43.839 be willing to hear the case. It only takes four 0:03:43.880 --> 0:03:45.840 of the nine justices to a pretty hear a case, 0:03:46.200 --> 0:03:49.000 so it seems pretty likely that this case will ultimately 0:03:49.040 --> 0:03:51.280 be back for the Supreme Court, maybe to be heard 0:03:51.360 --> 0:03:53.760 next year, and with the decision a year from June. 0:03:54.360 --> 0:03:59.240 Just to be clear, it's an unprecedented theory that basically 0:03:59.240 --> 0:04:03.520 a state judiciary can impose a map for congressional elections 0:04:03.960 --> 0:04:06.680 even though it finds a map violates the state constitution. 0:04:07.080 --> 0:04:10.120 The idea is that the state legislature has some kind 0:04:10.160 --> 0:04:13.040 of independent power, like it's not the state itself, it's 0:04:13.080 --> 0:04:16.120 the legislature as a body, and that the state legislature 0:04:16.160 --> 0:04:18.800 can trump even the state constitution as applied by the 0:04:18.800 --> 0:04:21.520 state legislature. The argument has been around for a while. 0:04:21.640 --> 0:04:24.080 In Bush versus Gore, which was the case that ended 0:04:24.120 --> 0:04:27.200 the two thousand election, the majority opinion for the court 0:04:27.279 --> 0:04:29.159 said that the recount that had been ordered by the 0:04:29.160 --> 0:04:33.440 Florida Supreme Court violated equal protection or to process guarantees, 0:04:33.640 --> 0:04:36.400 but there was a separate three justice concurren written by 0:04:36.480 --> 0:04:39.600 then Chief Justice William Rehnquist and joined by Justice Thomas 0:04:39.600 --> 0:04:42.840 and Scalia that advanced this theory and said that there 0:04:42.920 --> 0:04:46.839 was a separate problem with the order to do these recounts, 0:04:46.839 --> 0:04:50.159 which was that it was ordered in violation of what 0:04:50.240 --> 0:04:53.560 the state legislative statute said, and you can't do it 0:04:53.600 --> 0:04:56.120 in reliance on the state constitution. So that's really kind 0:04:56.120 --> 0:04:58.760 of the modern origin of this argument. The Court has 0:04:58.800 --> 0:05:02.440 rejected very similar arguments in other cases, including as most 0:05:02.480 --> 0:05:08.440 recently a case in involving whether Arizona voters could adopt 0:05:08.600 --> 0:05:12.400 a registricting commission to draw district lines for Congress rather 0:05:12.440 --> 0:05:14.960 than letting the legislature do it, and on a five 0:05:15.000 --> 0:05:17.280 to four vote, the Supreme courts that we don't read 0:05:17.360 --> 0:05:21.240 legislature as narrowly at the Arizona legislature was arguing that 0:05:21.320 --> 0:05:23.719 was a five to four decision two of the justices 0:05:23.800 --> 0:05:25.960 soon to be three of the justices, and that majority 0:05:26.120 --> 0:05:28.720 will have left the Court by the time that this 0:05:28.800 --> 0:05:31.640 issue returns to the Supreme Court, presumably in the North 0:05:31.640 --> 0:05:34.679 Carolina case, and Chief Justice Roberts, who was the chief 0:05:34.760 --> 0:05:38.880 dissenter in that two thousands fifteen Arizona case, could well 0:05:39.240 --> 0:05:42.680 find himself having to choose between following a precedent he 0:05:42.720 --> 0:05:46.520 doesn't like or agreeing with at least three or four 0:05:46.640 --> 0:05:49.359 of his colleagues, two of them were not in the 0:05:49.360 --> 0:05:51.680 court of the time, and who seemed to agree with 0:05:51.880 --> 0:05:56.760 the position he took back in this independent state legislature doctrine, 0:05:57.200 --> 0:06:00.400 if the Court were to adopt it, that would be 0:06:00.760 --> 0:06:05.039 contrary to precedent. Well, the issues are not exactly the same, 0:06:05.200 --> 0:06:08.320 because in that fifteen case, for example, the question is 0:06:08.320 --> 0:06:11.919 whether you could use the initiative process to displace the legislature. 0:06:12.080 --> 0:06:14.560 In this case, the question is whether state court supplying 0:06:14.600 --> 0:06:18.479 state constitutions can supplement what the legislature has done. There 0:06:18.520 --> 0:06:21.599 related questions, but they're not quite exactly the same. But 0:06:21.880 --> 0:06:25.359 there are precedents going back a hundred years where the 0:06:25.440 --> 0:06:28.680 court has rejected this kind of argument in different contexts, 0:06:28.720 --> 0:06:31.320 but it hasn't gotten a full airing in the modern 0:06:31.520 --> 0:06:34.360 period other than in that Arizona case. And we don't 0:06:34.360 --> 0:06:37.200 know if precedents is going to stick in that Arizona case. 0:06:37.560 --> 0:06:41.080 So let me ask you this, why are conservatives pushing 0:06:41.120 --> 0:06:43.680 it and why are the three at least the three 0:06:43.720 --> 0:06:48.040 dissenters seemingly in favor of it, and perhaps Kavana as well. Well. 0:06:48.080 --> 0:06:52.080 Now you're getting really interesting questions. So both Pennsylvania and 0:06:52.240 --> 0:06:56.680 North Carolina have the following political configuration. They have legislatures 0:06:56.720 --> 0:06:59.840 that are dominated by Republicans in part because of earlier 0:07:00.000 --> 0:07:03.800 Publican jerrymagers. They've got democratic governors, and they've got democratic 0:07:03.920 --> 0:07:07.360 majority Supreme Court, that is Supreme Court with justices who 0:07:07.360 --> 0:07:10.240 were either nominated or favored by the Democratic Party. And 0:07:10.280 --> 0:07:12.280 so in each of these dates, you have a Democratic 0:07:12.320 --> 0:07:15.560 Supreme Court saying that the Republican jerrymanager is no good. 0:07:15.840 --> 0:07:19.239 And now you have these conservative justices on the Supreme 0:07:19.240 --> 0:07:22.320 Court disagreeing with the Democratic States Supreme Court and agreeing 0:07:22.320 --> 0:07:26.440 with the Republican legislature and potentially allowing them to continue 0:07:26.440 --> 0:07:29.560 for another decade with a partisan cherry managing of district. 0:07:29.680 --> 0:07:32.040 And it's kind of builds on itself, right, because you 0:07:32.400 --> 0:07:35.680 end up adopting rules through a body that had been 0:07:35.840 --> 0:07:39.200 elected under rules that have been manipulated by the earlier body, 0:07:39.280 --> 0:07:42.120 and so it creates a kind of feedback. And so 0:07:42.320 --> 0:07:44.920 there's both kind of an ideological understanding of this like, 0:07:45.000 --> 0:07:48.440 let's read the word legislature very literally in the text 0:07:48.480 --> 0:07:50.920 of the Constitution. But there's also a political aspect of this, 0:07:51.080 --> 0:07:53.960 which is, let's give the Republican legislature a chance to 0:07:54.000 --> 0:07:55.720 do what it wants to do and not let the 0:07:55.760 --> 0:07:59.320 democratic state Supreme Court ring them in. The Supreme Court 0:07:59.360 --> 0:08:04.240 has all cut off certain ways to challenge election laws 0:08:04.280 --> 0:08:09.000 election districts, and in twenty nine when they close federal 0:08:09.040 --> 0:08:13.200 courts to claims of partisan gerrymandering, the Chief Justice wrote 0:08:13.280 --> 0:08:17.080 that those claims could get through state courts, right, right, 0:08:17.080 --> 0:08:20.600 So there's an inconsistency there in terms of In Rouco, 0:08:20.720 --> 0:08:22.560 the case you're referring to, the Court said, but you 0:08:22.560 --> 0:08:24.560 could always go to state court. Now, maybe you could 0:08:24.560 --> 0:08:26.960 reconcile that by saying, but that's only true as to 0:08:27.120 --> 0:08:31.239 preventing gerrymandering of state legislative districts and not congressional districts. 0:08:31.280 --> 0:08:34.120 But the congressional power is different when it comes to 0:08:34.120 --> 0:08:37.280 federal elections, and state power is different when it comes 0:08:37.320 --> 0:08:42.240 to federal election So it's sufficiently uncertain that I think 0:08:42.280 --> 0:08:44.000 the Supreme Court is going to have to resolve it, 0:08:44.559 --> 0:08:47.400 and likely in the North Carolina case and in a way. 0:08:47.440 --> 0:08:48.720 That would be a very good thing for it to 0:08:48.760 --> 0:08:51.240 be resolved one way or the other, because this issue 0:08:51.280 --> 0:08:54.640 did appear as well in the presidential election, and it 0:08:54.679 --> 0:08:57.240 would have been really a mess for the Supreme Court 0:08:57.280 --> 0:09:00.880 to adopt a new, very controversial doctrine that could have 0:09:00.960 --> 0:09:04.960 helped determine the outcome of the presidential election itself. So, Rick, 0:09:05.000 --> 0:09:08.520 does it mean that if there are claims of partisan gerrymandering, 0:09:08.880 --> 0:09:11.120 if they adopted this, there's no appeal to federal court 0:09:11.200 --> 0:09:13.800 and there's no appeal to state court either. As to 0:09:13.840 --> 0:09:16.520 a congressional district, there would be no appeal. Is that 0:09:16.520 --> 0:09:19.200 what the Framers would have wanted? Well, I don't know 0:09:19.240 --> 0:09:21.560 that that's the question, but I think you would argue 0:09:21.559 --> 0:09:23.920 that's not what the Framers want. Didn't The better historical 0:09:23.960 --> 0:09:27.160 evidence is that this independent state legislature theory is is 0:09:27.160 --> 0:09:30.040 something that is not in line with original understanding of 0:09:30.080 --> 0:09:32.160 the Constitution. And I'm sure that there's going to be 0:09:32.200 --> 0:09:35.040 a lot of arguments aimed at Justice Amy Coney Barrett, 0:09:35.040 --> 0:09:37.840 who is an originalist who has not weighed in on 0:09:37.880 --> 0:09:41.439 this question, and who might care about that historical record 0:09:41.679 --> 0:09:46.400 for textualists originalists on the Court which is the better 0:09:46.440 --> 0:09:51.560 interpretation according to your thinking. Well, I think that UM, 0:09:51.640 --> 0:09:56.600 the richer understanding of the constitution would reject this very 0:09:56.640 --> 0:10:00.079 strong independent state legislature doctrine and understand the state legislature 0:10:00.160 --> 0:10:05.240 is act within the context of their own UM state laws, 0:10:05.280 --> 0:10:08.760 including state Supreme courts supplying state constitutions, and the claim 0:10:08.760 --> 0:10:12.200 in North Carolina to me is exceptionally weak because the 0:10:12.240 --> 0:10:16.240 provision of the state constitution that guarantees these voting rights 0:10:16.480 --> 0:10:20.839 was actually one that the state legislature had approved in 0:10:20.960 --> 0:10:24.840 nine when it had amended its constitutions. So there's all 0:10:24.920 --> 0:10:30.360 kinds of reasons why, UM, the North Carolina General Assembly, 0:10:30.440 --> 0:10:34.079 that's the legislative body there should lose. In UM, this 0:10:34.120 --> 0:10:36.360 case shouldn't come back to the Supreme Court. But I'm 0:10:36.360 --> 0:10:38.320 not at all confident that they will lose. I just 0:10:38.360 --> 0:10:42.439 think that they should finally, so the Democrats win here 0:10:42.480 --> 0:10:45.600 in the short term, but now this is something that 0:10:45.640 --> 0:10:48.400 they should be concerned about in the long term. Oh, 0:10:48.440 --> 0:10:51.439 I think absolutely, yes. This is something that really could 0:10:51.480 --> 0:10:54.960 have impact beyond redistricting as well. It could apply anytime 0:10:54.960 --> 0:10:59.120 a state legislature's rule is challenged as violating a state 0:10:59.120 --> 0:11:01.640 constitutional provision. And it's going to be applied in the 0:11:01.720 --> 0:11:04.760 federal election. Thanks so much for lending us your expertise. Rick. 0:11:05.040 --> 0:11:08.360 That's Rick Casson, a professor at you see Irvine Law School. 0:11:09.880 --> 0:11:12.200 When I put my hand on the Bible and took 0:11:12.200 --> 0:11:15.160 the oath of office twenty two months ago, I knew 0:11:15.200 --> 0:11:18.480 this job would be hard, but I'll be honest, I 0:11:18.559 --> 0:11:22.280 never could have imagined anything like this. I want to 0:11:22.320 --> 0:11:26.400 start by saying thank you to our law enforcement. Thank 0:11:26.440 --> 0:11:30.760 you to the fearless FBI agents, and thank you to 0:11:30.840 --> 0:11:35.120 the brave Michigan State Police troopers who participated in this operation. 0:11:35.440 --> 0:11:39.160 That was Michigan Governor Gretchen Whitmer in October of last year, 0:11:39.480 --> 0:11:42.720 talking about the plot to kidnap her. Today, trial began 0:11:42.760 --> 0:11:46.360 for four men accused of conspiring to kidnap Whittmer and 0:11:46.400 --> 0:11:50.280 conspiring to use a weapon of mass destruction. The focus 0:11:50.320 --> 0:11:52.959 of the trial quickly turned to the question of whether 0:11:53.000 --> 0:11:57.120 the FBI tricked and cajole the defendants into agreeing to 0:11:57.160 --> 0:12:00.600 the kidnap plot. Joining me is former u US Attorney 0:12:00.600 --> 0:12:05.000 for Eastern Michigan Matthew Schneider, a partner at Honigman So 0:12:05.320 --> 0:12:10.120 described the crime alleged here and the atmosphere in Michigan 0:12:10.160 --> 0:12:14.040 at the time, So the atmosphere in Michigan was of 0:12:14.080 --> 0:12:17.720 course COVID restrictions, and that was happening all across the country, 0:12:18.280 --> 0:12:21.520 and there were a number of different types of events 0:12:21.559 --> 0:12:24.920 that happened in Michigan that were very extreme, which were 0:12:24.960 --> 0:12:27.959 locked downs there. It started with people not being able 0:12:28.000 --> 0:12:31.319 to go to the store or go to work, and 0:12:31.360 --> 0:12:34.720 then eventually it became that you could stand out in 0:12:34.720 --> 0:12:37.520 your house, but you couldn't talk to your neighbors, and 0:12:37.559 --> 0:12:39.840 then even that shut off, and so there were a 0:12:39.840 --> 0:12:43.560 lot of restrictions and people felt very strongly about that. 0:12:44.080 --> 0:12:47.000 And as the course of these restrictions built, a lot 0:12:47.080 --> 0:12:49.720 of public sentiment built one way or the other, either 0:12:49.840 --> 0:12:53.720 in support of Governor Whitmer or against Governor Whitmer. And 0:12:53.800 --> 0:12:57.520 as we found out that at this time, these defendants 0:12:57.520 --> 0:13:00.600 in this case were on the very very supposed to 0:13:00.640 --> 0:13:04.680 Governor Whittmer's restrictions. And the allegations in this case are 0:13:04.840 --> 0:13:07.960 that they decided that they would take matters into their 0:13:08.000 --> 0:13:11.679 own hands, and instead of most Americans complaining about it, 0:13:11.760 --> 0:13:14.880 writing letters to the newspaper or talking to folks and 0:13:14.960 --> 0:13:18.240 being upset. The allegation here is that they put together 0:13:18.280 --> 0:13:20.640 a conspiracy plot and they thought the one way that 0:13:20.679 --> 0:13:23.320 we could do this is that we would kidnap the 0:13:23.360 --> 0:13:26.240 governor and we would take her hostage, and we would 0:13:26.320 --> 0:13:29.640 use weapons to do that, and they felt that that's 0:13:29.679 --> 0:13:32.360 the way that they would get their point across. Of course, 0:13:32.360 --> 0:13:35.079 they're innocent until proven guilty, and the trials just started, 0:13:35.120 --> 0:13:39.160 but that is the allegation in this case. So tell 0:13:39.240 --> 0:13:43.840 us if anything unusual happened during jury selection. You know, 0:13:43.960 --> 0:13:48.520 it's interesting because the jury pool is is from West Michigan, 0:13:48.559 --> 0:13:51.520 which is not necessarily a strong point for Governor Whittmer 0:13:51.600 --> 0:13:54.040 as it was, but I think at the end of 0:13:54.040 --> 0:13:57.440 the day, there should be a fair jury here. But 0:13:57.600 --> 0:13:59.559 we don't really know a lot about some of these 0:13:59.600 --> 0:14:05.240 jurors because they ended the jury selection without asking a 0:14:05.280 --> 0:14:07.680 lot of questions about some of them, just kind of 0:14:07.720 --> 0:14:10.559 their background and whether they could could do it, but 0:14:10.679 --> 0:14:13.600 not much detail. So some of this is a little unknown. 0:14:14.080 --> 0:14:16.960 One aspect of this jury selection that I found very 0:14:17.000 --> 0:14:21.200 concerning myself was people were asked, as with any other 0:14:21.280 --> 0:14:24.080 jury selection, can you be fair, And a number of 0:14:24.080 --> 0:14:27.720 people said, I can't be fair? In this case, because 0:14:27.800 --> 0:14:32.080 I really dislike Governor Whitmer, and I can't be fair. Well, 0:14:32.480 --> 0:14:35.240 you know that what that said to me is a 0:14:35.280 --> 0:14:37.960 lot of people dislike Governor Whittmer. That's fine, she's a 0:14:37.960 --> 0:14:42.640 political figure, and that's okay. But when somebody says I 0:14:42.680 --> 0:14:46.160 dislike her so much that maybe I'm sympathetic to somebody 0:14:46.160 --> 0:14:48.600 who wants to kidnap her, I found that to be 0:14:48.680 --> 0:14:52.240 quite disturbing, because in this country, we're not supposed to 0:14:52.240 --> 0:14:56.560 settle our political differences through violence. We're supposed to settle 0:14:56.600 --> 0:14:59.400 them at the ballot box. And at least some people 0:14:59.480 --> 0:15:03.200 on this or who were excused, tip their hands to 0:15:03.280 --> 0:15:06.560 the fact that they thought that violence in response to 0:15:06.560 --> 0:15:10.680 political disagreements might be okay, and that that's something that 0:15:10.720 --> 0:15:14.880 should trouble all of us. So let's talk about the 0:15:14.960 --> 0:15:20.000 opening statements. Let's start with the prosecution. It featured what 0:15:20.160 --> 0:15:25.240 sounds like some wild tales. Yes, the prosecution had a 0:15:25.280 --> 0:15:28.760 strong opening in my view, and they explained the time 0:15:28.840 --> 0:15:31.840 and the timeline and the chronology about what happened and 0:15:32.280 --> 0:15:36.640 how these defendants got together, and they started talking about 0:15:37.320 --> 0:15:39.680 different ways that they could rebel against the government and 0:15:39.920 --> 0:15:42.680 Michigan and then they started to train together and they 0:15:42.720 --> 0:15:45.160 started to use assault rifles. Some of them had been 0:15:45.160 --> 0:15:47.320 doing this for a while, but they started to take 0:15:47.360 --> 0:15:52.080 target practice, and the FBI infiltrated this group, and the 0:15:52.200 --> 0:15:56.160 discussion went more instead of here's the types of things 0:15:56.200 --> 0:15:59.080 we could do, here are the actions that we could take. 0:15:59.440 --> 0:16:02.840 And then the government alleges that they actually started to 0:16:02.880 --> 0:16:06.400 take these steps. So it's one thing to say, I 0:16:06.480 --> 0:16:08.200 think what we need to do is go to the 0:16:08.240 --> 0:16:12.200 governor's house and surveil it. In this case, the evidence 0:16:12.280 --> 0:16:14.360 is going to show that the defendants, some of them, 0:16:14.520 --> 0:16:17.640 actually did that. They went to the governor's house. And 0:16:18.120 --> 0:16:19.920 you know, it's another thing to say, well, we should 0:16:19.960 --> 0:16:23.160 buy some explosives so that we could detonate it near 0:16:23.200 --> 0:16:26.240 the governor's house. Talk is one thing, but the evidence 0:16:26.240 --> 0:16:28.440 in this case, the government says, is they're going to 0:16:28.440 --> 0:16:30.480 show that they tried to buy these explosives, and some 0:16:30.560 --> 0:16:33.840 explosives they did buy, and the point was they really 0:16:33.840 --> 0:16:36.160 wanted to put their money where their mouth was. And 0:16:36.200 --> 0:16:38.560 so that's the case that the government has laid out 0:16:38.880 --> 0:16:42.640 that they actually took some actions. They took these overt acts, 0:16:42.680 --> 0:16:46.440 these steps, and further into the conspiracy and that's why 0:16:46.640 --> 0:16:49.080 the government believes that they should be found guilty. So 0:16:49.720 --> 0:16:53.720 the defense raised the defense of entrapment. They said that 0:16:53.800 --> 0:16:57.640 the FBI tricked the defendants into agreeing to the plot 0:16:57.760 --> 0:17:01.640 to kidnap Witner, and the FBI drove the whole thing. 0:17:02.440 --> 0:17:06.479 So tell us about that defense. So what we know 0:17:06.720 --> 0:17:10.800 so far is that the defense, originally in the opening 0:17:10.840 --> 0:17:14.119 statements didn't really touch this entrapment. They just kind of 0:17:14.560 --> 0:17:17.880 nibbled around the edges. At some point in the openings 0:17:17.880 --> 0:17:20.760 it became clear that that's really what they were talking about, 0:17:21.080 --> 0:17:24.919 and an entrapment defense is saying, essentially, I'm not the 0:17:24.960 --> 0:17:26.960 one who came up with this idea, I'm not the 0:17:26.960 --> 0:17:29.920 one who really wanted to do this, and but for 0:17:30.000 --> 0:17:33.439 the government, I wouldn't have done this. I wouldn't have 0:17:33.600 --> 0:17:36.639 tried to put this plan into place except for the 0:17:36.680 --> 0:17:40.359 government goading me on. And some of these defendants have 0:17:40.520 --> 0:17:43.680 said that they really had no experience in tactical training 0:17:43.680 --> 0:17:48.119 and using weapons. But Dan, this undercover FBI informant, is 0:17:48.160 --> 0:17:50.400 the one who trained them, and he's the one who 0:17:50.520 --> 0:17:54.320 encouraged them. So that's the entrapment defense, and the government 0:17:54.320 --> 0:17:57.119 of course and is going to use the jury instruction 0:17:57.160 --> 0:18:00.640 for entrapment, and there are signs in there the government 0:18:00.640 --> 0:18:03.320 can point to to say that you weren't entrapped, And 0:18:03.359 --> 0:18:06.000 that's really based on the fact that the defendants were 0:18:06.160 --> 0:18:10.600 what they call predisposed to commit the crime. That means 0:18:10.760 --> 0:18:13.840 they already had this thought in their mind before the 0:18:13.880 --> 0:18:18.240 government introduced the undercover agents. And under the law, if 0:18:18.320 --> 0:18:22.920 you have that predisposition, then entrapment is not a valid defense. 0:18:23.840 --> 0:18:27.760 Is it a high risk strategy to defend based on 0:18:27.960 --> 0:18:33.000 entrapment because you're conceding that some crimes may have been committed. 0:18:34.240 --> 0:18:37.800 It is because it's an infirmative defense where you you 0:18:37.840 --> 0:18:40.639 have to admit to certain things, but say, similar to 0:18:40.680 --> 0:18:44.000 self defense, say I did this. However, now it's important 0:18:44.040 --> 0:18:47.680 to note that as this trial has played out, it's 0:18:47.720 --> 0:18:50.520 not as clear cut as the government has thought, in 0:18:50.560 --> 0:18:53.960 my opinion, because entrapment is not the only defense. There's 0:18:54.040 --> 0:18:56.639 a separate defense that is being laid out by at 0:18:56.680 --> 0:18:59.920 least one of the defendants to say that this is 0:19:00.119 --> 0:19:03.960 all really big talk. We did not intend this, but 0:19:04.080 --> 0:19:06.800 we talked really big and we came up with some 0:19:07.000 --> 0:19:11.360 wild ideas. And the defense is going to explain the 0:19:11.359 --> 0:19:13.960 fact that we talked about, what are some ways we 0:19:14.000 --> 0:19:16.640 could go and take out Governor Whitmer. Well, one way 0:19:16.680 --> 0:19:18.520 is we could all sneak over to her house and 0:19:18.560 --> 0:19:20.359 we could hide in the woods and we could bark 0:19:20.440 --> 0:19:22.919 like animals, and then she would come out, because she 0:19:23.000 --> 0:19:26.840 cares about animals. Another thing that they talked about was, well, 0:19:26.880 --> 0:19:29.920 we could cut all the trees down between Indiana and Michigan, 0:19:29.960 --> 0:19:32.639 because that would create a stir and would prevent people 0:19:32.640 --> 0:19:34.800 from getting into the state. Or we could tie a 0:19:34.920 --> 0:19:37.840 kite to the governor and flyer over Lake Michigan. Now 0:19:37.880 --> 0:19:40.560 that's all nonsense, right, that's not going to work. And 0:19:40.600 --> 0:19:43.360 the defense in this case is, look, they said all 0:19:43.400 --> 0:19:45.679 these things when they were drunken, when they were stoned. 0:19:46.160 --> 0:19:49.320 Another thing that they said was we're going to kidnap her, 0:19:49.760 --> 0:19:52.359 and so all of this is in one big pot. 0:19:52.880 --> 0:19:55.600 We didn't mean it, and it's all just a bunch 0:19:55.640 --> 0:19:59.920 of big talk, and therefore their strategy is we're big talkers, 0:20:00.240 --> 0:20:03.119 we didn't mean it, we couldn't actually accomplish this, and 0:20:03.160 --> 0:20:05.720 you should find us not guilty. The fact that there 0:20:05.760 --> 0:20:10.840 are four defendants here are their defenses. United You said 0:20:10.840 --> 0:20:14.280 that one of the defense attorneys brought up this crazy talk. 0:20:14.600 --> 0:20:17.720 So how does it play that there are four of them? 0:20:17.840 --> 0:20:19.959 So there's four defendants and each of them gets an 0:20:19.960 --> 0:20:23.680 opportunity to speak as questions, give their opening statements. That's 0:20:23.680 --> 0:20:27.280 how the openings played out. Now, let's see what happens 0:20:27.280 --> 0:20:30.119 in the closings. Right, are they all going to last 0:20:30.119 --> 0:20:32.520 on to that defense? Will they all be in the 0:20:32.680 --> 0:20:35.359 entrapment defense that we know all four of them have 0:20:35.440 --> 0:20:38.840 already said, well, we'll plead entrapment. But will they all 0:20:38.920 --> 0:20:42.800 argue these other kind of stoned, crazy delusions and that's 0:20:42.800 --> 0:20:45.160 why we did it? Will they argue that that really 0:20:45.160 --> 0:20:47.439 remains to be seen And we won't know for weeks 0:20:47.480 --> 0:20:50.399 because this trial will probably take at least four to 0:20:50.480 --> 0:20:55.120 six weeks to get through. But will the jury distinguish 0:20:55.320 --> 0:20:58.360 one defendant from the other for something like if they're 0:20:58.400 --> 0:21:02.399 sitting there and it's this wild talk plan to you know, 0:21:02.440 --> 0:21:05.840 put a kite on Whittner, whatever, will the jury really 0:21:05.880 --> 0:21:09.240 distinguish one from the other or will the defense is 0:21:09.320 --> 0:21:14.080 sort of bleed into one another. So normally juries do 0:21:14.280 --> 0:21:16.920 take the time and effort to go one by one 0:21:17.200 --> 0:21:20.920 through each defendant and find this defendant with these elements 0:21:21.000 --> 0:21:23.840 either did or did not commit this crime, and there 0:21:23.880 --> 0:21:26.520 will be plenty of time for jury deliberations to do that. 0:21:27.080 --> 0:21:30.000 Sometimes people fear that if you're if you're in a 0:21:30.040 --> 0:21:32.560 group of people who are committing crimes, and then there's 0:21:32.600 --> 0:21:36.200 guilt by association. I have found in my experience that 0:21:36.520 --> 0:21:39.560 jurors are are quite smart, they're quite intelligent, and they're 0:21:39.640 --> 0:21:42.360 able to parse out who did what and who did 0:21:42.359 --> 0:21:44.560 not do what. So I think we'll we'll be able 0:21:44.560 --> 0:21:46.320 to see a jury that is able to do that. 0:21:46.680 --> 0:21:51.440 Let's talk about some of the witnesses. Two insiders who 0:21:52.000 --> 0:21:56.119 turned state's evidence seem to be important for the government. 0:21:57.119 --> 0:22:00.879 That's true. So there are two defendants who were charged 0:22:00.920 --> 0:22:03.720 in this case, but they've pleaded guilty and now they're 0:22:03.760 --> 0:22:07.560 cooperating for the government, and they've committed crimes and they 0:22:07.800 --> 0:22:10.720 are going to admit that and explain what happened. And 0:22:10.760 --> 0:22:13.560 the government's theory in this is that the best way 0:22:13.560 --> 0:22:16.480 to know what happens in a secret conspiracy is to 0:22:16.520 --> 0:22:19.320 actually get one of the members of the conspiracy to 0:22:19.440 --> 0:22:22.400 come out and explain what happened. And these people were 0:22:22.480 --> 0:22:25.639 insiders who can say I was in that room. I 0:22:25.760 --> 0:22:28.560 was part of those conversations. I know what happened, and 0:22:28.600 --> 0:22:32.359 here's and here's what actually took place. The defense on 0:22:32.440 --> 0:22:36.000 these types of cases is always the same. You're a liar, 0:22:36.240 --> 0:22:39.439 and the reason why you're testifying is for one reason, 0:22:39.760 --> 0:22:41.879 and that's because you've been convicted of a crime. And 0:22:41.880 --> 0:22:45.280 if you testify and you give the government what they want, 0:22:45.320 --> 0:22:47.400