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Speaker 1: People are confused with the ruling. Um. And you know,

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Speaker 1: I think that the concern that some families had had

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Speaker 1: in the very beginning that this day was gonna come

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Speaker 1: where they were going to have to relive another trial. Uh,

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Speaker 1: and you know they shouldn't have to relive a trial.

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Speaker 1: That was former Boston Mayor Marty Walsh a year ago

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Speaker 1: after a federal appeals court throughout the death sentence of

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Speaker 1: Boston marathon bomber Joe Harsar Naive. That decision will now

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Speaker 1: be at the center of one of the biggest cases

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Speaker 1: the Supreme Court will hear when it returns in October.

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Speaker 1: My guest is constitutional law professor Harold Crent of the

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Speaker 1: Chicago Kent College of Law. How what issues will the

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Speaker 1: Supreme Court be considering in deciding whether to reinstate the

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Speaker 1: death penalty forced Our naive case rises out of the

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Speaker 1: awful Boston marathon bombing, and of course was caught red handed.

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Speaker 1: He was sentenced to death, and two challenges in this

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Speaker 1: case that the first circuit to overturn not the conviction

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Speaker 1: but the imposition of the death penalty. The two grounds

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Speaker 1: were first that the defense attorney was not permitted to

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Speaker 1: question the jurors about the extent to which they had

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Speaker 1: read about the bombing prior to being seated as jurors.

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Speaker 1: And second, at the capital phase of the mitigation phase,

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Speaker 1: Tarnaye argued principally that he was under the spell and

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Speaker 1: influence of his older brother, who had been killed in

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Speaker 1: the shootout with the police, and that he had tried

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Speaker 1: to introduce evidence of a grizzly set of murders that

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Speaker 1: the older brother had committed previously, including dominating a friend

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Speaker 1: and trying to get the friend to help him commit

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Speaker 1: these murders, and the court had rejected the defense's effort

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Speaker 1: to introduce this information. So those are the two issues

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Speaker 1: raised to the Supreme Court. Why take this case? Because

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Speaker 1: the context has changed since Attorney General Merrick Garland has

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Speaker 1: stopped all federal executions. I think that the Supreme Court

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Speaker 1: might be taking this case not just because of this notoriety,

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Speaker 1: but to investigate the use of harmless error in death

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Speaker 1: penalty cases. And indeed, the Supreme Court took another case

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Speaker 1: where the harmless air doctrine may arise. That case arose

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Speaker 1: from when a defendant was shackled in the jury, just

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Speaker 1: as we saw in the Chicago seventh movie recently, and

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Speaker 1: the Sixth Circuit reversed the conviction on the ground that

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Speaker 1: the shackling of a defendant could never be innocent, and

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Speaker 1: I think the court took that as well to look

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Speaker 1: at the harmless air doctrine. Obviously, the evidence was overwhelming

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Speaker 1: with respect to Turnaye, and that may have influenced the

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Speaker 1: Supreme Court to take the case. Politically, this is fascinating

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Speaker 1: because President Biden has said that he's an opponent of

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Speaker 1: the death penalty, but he is acquiesced into allowing the

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Speaker 1: Supreme Court to hear this case. Somewhat of a head

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Speaker 1: scratcher in terms of why he is allowing the case

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Speaker 1: to go forward. The Biden administration could have easily gotten

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Speaker 1: rid this case by just saying that they would never

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Speaker 1: enforce the death penalty. And but obviously he's willing to

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Speaker 1: allow the Court to make these kinds of decisions even

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Speaker 1: if he won't use the death penalty during his term.

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Speaker 1: So let's turn out to a case that's destined to

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Speaker 1: be one of the most watched and perhaps controversial of

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Speaker 1: next term, centering on a Mississippi law that would ban

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Speaker 1: abortions in almost all cases after fifteen weeks of pregnancy.

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Speaker 1: What is Mississippi asking here? This case isn't petic because

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Speaker 1: it directly challenges the viability test that the Supreme Court

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Speaker 1: has now upheld in the versus Raid and in Planned

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Speaker 1: Parenthood versus Casey. Under that scheme, the state had insufficient

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Speaker 1: reason or insubition justifications to regulate the women's right to

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Speaker 1: choose prior to viability. Under this Mississippi statute or the

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Speaker 1: Gestational Age Act, the line that's drawn is really rather

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Speaker 1: one of fifteen months, So the point would have to

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Speaker 1: jettisone or get rid of the Row framework in order

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Speaker 1: to oppose the law here, and it may well do that.

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Speaker 1: So this is an incredibly significant decision, and what the

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Speaker 1: Court would be replace it with is unclear, except perhaps

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Speaker 1: to give the green like the states to ban abortion,

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Speaker 1: as many did prior to Roversus Weight. So Mississippi is

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Speaker 1: asking for a sweeping ruling here. But can the Justices

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Speaker 1: decide this case without overturning Row or Casey. I don't

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Speaker 1: think so. That's what's so telling about this case, and

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Speaker 1: that they chose to take this case is because there's

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Speaker 1: no way that I can see for them to uphold

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Speaker 1: the gestational Age Act and still be consistent with the

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Speaker 1: framework of Rovers's way. They might adopt a different framework,

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Speaker 1: but it would not be the one that focuses on viability.

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Speaker 1: As their precedents dictate. The issue in this case hadn't

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Speaker 1: divided the lower court, so they could easily have not

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Speaker 1: taken this case right. What's amazing is that that took

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Speaker 1: the case because this is not a case as with

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Speaker 1: others chipping away the abortion right. It is absolutely a

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Speaker 1: frontal attack, at least a frontal attack on the framework

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Speaker 1: set out in Rovers's way in in Casey, the Supreme

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Speaker 1: Court is going to consider making it easier for people

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Speaker 1: to walk around with a gun. I mean, that's just

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Speaker 1: backwards and dangerous. So I heard that news in my

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Speaker 1: heart sank. Like New York City Mayor Bill de Blasio,

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Speaker 1: the hearts of gun control advocates across the country sank

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Speaker 1: when the Supreme Court announced it would discide whether to

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Speaker 1: allow most people to carry a handgun in public. I've

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Speaker 1: been talking to Professor Harold Crent of the Chicago Kent

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Speaker 1: College of Law, so how this will be the first

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Speaker 1: time in more than a decade that the Supreme Court

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Speaker 1: takes up a major second Amendment case. What's at stake here?

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Speaker 1: The Court has stayed away, as you mentioned, from Second

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Speaker 1: Amendment cases for ten years, and the lower courts are split,

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Speaker 1: and how to analyze cases when there are certain state

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Speaker 1: regulations about background checks, state regulations about what kind of

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Speaker 1: guns one can purchase, and state regulations as in this

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Speaker 1: case about carrying a pistol concealed carry law which would

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Speaker 1: allow someone to carry a pistol in public. And so

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Speaker 1: they've divided both in terms of what kind of scrutiny

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Speaker 1: to apply as well as in results. Most courts have

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Speaker 1: provided the universe into a core and non core gun

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Speaker 1: ownership issue. Owning guns at home would be core, having

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Speaker 1: an assault weapon would not be core. And the question

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Speaker 1: then that's puzzled these courts is whether having a pistol

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Speaker 1: in public is such a core right, which then could

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Speaker 1: only be limited if there is a compelling governmental state interest.

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Speaker 1: And you know, the courts are split and their history

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Speaker 1: is split. Some courts have relied upon history and said

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Speaker 1: that there is no kind of ingraining history of waving

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Speaker 1: around a pistol in public, or even keeping one concealed

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Speaker 1: in public, as there is and having hunting rifles or

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Speaker 1: and having guns at home. So the courts have been

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Speaker 1: split on the historical pedigree of concealed carry as well

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Speaker 1: is on the standard of review to apply. So this

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Speaker 1: has been your very telling case because the Court will

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Speaker 1: have to give some kind of help to lower courts

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Speaker 1: about how to analyze the many many Second Amendment cases

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Speaker 1: on background checks on licensing that exists, or they may

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Speaker 1: take a narrow view and say that in this case,

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Speaker 1: New York has said you can only have a license

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Speaker 1: if you have good cause, and that good cause is

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Speaker 1: open to interpretation in a case by case basis. Do

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Speaker 1: you have a fear for your life? Do you live

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Speaker 1: in a lousing neighborhood? You know what is the reason

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Speaker 1: that you give? And they may decide that that kind

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Speaker 1: of subjectivity has no place in the Second Amendment, and

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Speaker 1: so they may take a narrow way out and not

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Speaker 1: talk about the standard of review at all, but just

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Speaker 1: say that states, if they limit a right to carry guns,

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Speaker 1: have to do so and object of le verifiable way.

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Speaker 1: Looking at the court, you have Justice Brett Kavanagh, who

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Speaker 1: joined an opinion with Justice Clarence Thomas, who is an

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Speaker 1: avid defender of the Second Amendment that described gun caring

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Speaker 1: restrictions as imposing an onerous burden on a fundamental right.

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Speaker 1: Where do you see this conservative court on this issue.

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Speaker 1: Do they want to move forward with less restrictions on

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Speaker 1: the Second Amendment. It's a tough question to predict. In

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Speaker 1: terms of the court. I don't think the Court is

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Speaker 1: going to go far as Justice Thomas wanted them to.

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Speaker 1: He has said in public that this is just like

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Speaker 1: the First Amendment, and we shouldn't allow any more kinds

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Speaker 1: of restrictions on speech outside the home, and so we

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Speaker 1: shouldn't allow restrictions on gun ownership outside the home either.

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Speaker 1: On the other hand, the Court has varied Fourth Amendment

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Speaker 1: rights whether someone's in the home or outside the home,

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Speaker 1: and has done so even this past term. So I

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Speaker 1: think that the Court will still be divided. Though my

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Speaker 1: guess is that they will strike down the concealed carry

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Speaker 1: licensing system that New York has adopted. And I should

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Speaker 1: note that Michael Bloomberg, the foundering majority owner of Bloomberg LP,

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Speaker 1: the parent company of Bloomberg Radio, is a donor to

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Speaker 1: groups that support gun control, including every Town for Gun Safety.

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Speaker 1: Now turning to a somewhat less controversial case involving religious rights,

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Speaker 1: the Court will consider whether states can exclude religious schools

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Speaker 1: from a student aid program because it's used to teach

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Speaker 1: religious education. Anybody predicting the outcome of this case would

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Speaker 1: have to say that the court will overturn the first

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Speaker 1: circuit here and say that the students have a choice

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Speaker 1: about whether to use a voucher or funds from the state,

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Speaker 1: and if they have the ability to use them in

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Speaker 1: a private school, that it would be unconstitutional to prevent

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Speaker 1: them from going to use them at a religious private school,

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Speaker 1: which in fact is what Maine have required. Maine, because

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Speaker 1: it has such small school districts, often give money to

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Speaker 1: the students that we don't have enough resources to have

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Speaker 1: you go to public school here, so take it to

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Speaker 1: a private school of your choice. But they had said

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Speaker 1: you can't take it to a private religious school. And again,

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Speaker 1: with this court, I'm very confident that they will recognize

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Speaker 1: a broader free exercise right and decide that Maine has

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Speaker 1: to permit their residents to use the state funds for

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Speaker 1: religious education. Well, even before Justice Ammy Coney Barrett got

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Speaker 1: on the court, the justices have been ruling in favor

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Speaker 1: of religious rights over just about any other rights, and

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Speaker 1: this would follow up on the ruling in Espinosa. It's

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Speaker 1: very similar to Espinosa. Esponosa was the Montana case, which

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Speaker 1: had to do with tax credits, and in this case

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Speaker 1: it's not tax credits, it's basically tuition dollars. And I

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Speaker 1: think the court is going to follow Espinoza and expand

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Speaker 1: it and don't have to expand it that much to

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Speaker 1: suggest that the main system is unconstitutional. As well. Last

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Speaker 1: night I found this He's Detaining number twenty four. Well's

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Speaker 1: your video. They water boarded him a hundred and eighty

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Speaker 1: three times. Everything they got from him who was either

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Speaker 1: a lie or something they already had. If it works,

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Speaker 1: why do you need to do it a hundred and

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Speaker 1: eighty three times? Because if what we did to him

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Speaker 1: ever came out in the court of law, the case

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Speaker 1: is over. The movie, appropriately called The Report, is about

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Speaker 1: the CIA's use of torture at black sides following the

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Speaker 1: September eleventh attacks and the Senate Intelligence Committees report on

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Speaker 1: the CIA's rendition, detention, and Interrogation program, commonly called the

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Speaker 1: torture program. Now. The first detainee taken to the CIA's

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Speaker 1: first black site, Abou Zu Beta, who was repeatedly tortured

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Speaker 1: and water boarded at least eighty three times. Is taking

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Speaker 1: his case to the Supreme Court. I've been talking to

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Speaker 1: Professor Harold Crant of the Chicago Kent College of Law.

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Speaker 1: Zubaida is what's known as a forever prisoner, held without

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Speaker 1: formal charges at Guantanamo Bay for fifteen years. What's he

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Speaker 1: asking the court? After he was captured in Pakistan, he

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Speaker 1: was taken to a CIA black site in Poland where

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Speaker 1: he was interrogated and tortured for a great deal of

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Speaker 1: time and actually did provide useful information. Zubaida, through his attorneys,

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Speaker 1: try to challenge what happened in Poland and suggest that

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Speaker 1: Poland was complicit in the CIA's torture campaign, and the

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Speaker 1: European Human Rights agree with him, and that set off

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Speaker 1: continuing inquiry in Poland. Now, during this Polish investigation, he

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Speaker 1: asked for and Poland courts agreed for information from the

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Speaker 1: United States which would then shed light on what happened

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Speaker 1: in Poland. And he sent a subpoena to two psychologists

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Speaker 1: where contractors of the CIA for information about this black

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Speaker 1: site in particular where he was held. And these CIA

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Speaker 1: contractors had talked publicly about their role in the torture campaign,

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Speaker 1: but had not disclosed details about what happened at this

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Speaker 1: particular site. And the lower court said that the CIA

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Speaker 1: did not have to give up any kind of information

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Speaker 1: because of the state secrets privilege, But the Ninth Circuit reversed,

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Speaker 1: so the state secrets privilege protects information the government says

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Speaker 1: would harm national security if exposed tell us the basis

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Speaker 1: of the Ninth circuits reversal relatively controversial because the Ninth

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Speaker 1: Circuit said that the lower court should have made a

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Speaker 1: line by line determination about the testimony, what testimony would

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Speaker 1: be allowed that didn't reveal a state secret and should

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Speaker 1: be permitted. And I think that they were influenced by

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Speaker 1: the fact that the discussion of these prisons that were

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Speaker 1: directed by the CIA is common knowledge, and so they

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Speaker 1: thought that the government was pushing too much of this

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Speaker 1: information under the rug and that they should not be

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Speaker 1: allowed to make a blanket refusal to allow any kind

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Speaker 1: of information. So the Ninth Circuit said, you've got to

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Speaker 1: make a line by line determination, and the government said

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Speaker 1: state secret privilege, you get to dismiss the entire case.

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Speaker 1: It's too dangerous to have the court segregate information that's

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Speaker 1: permissible already in the public domain, or would not reveal

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Speaker 1: a state secret from that, which is problematic. So we'll

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Speaker 1: have to see. It's a very strange procedural posture. But nonetheless,

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Speaker 1: at the heart of it is the question about state secrets.

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Speaker 1: Should we allow it the government or to have an

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Speaker 1: immunity because state secrets and not have to respond to

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Speaker 1: this request for information, or do we say, okay, it's

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Speaker 1: like an evidentiary privilege. And obviously the government wouldn't have

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Speaker 1: to disclose anything that's the state secret, but at the

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Speaker 1: same time it does have a duty to disclose anything

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Speaker 1: that's connected with it. It does not raise the kind

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Speaker 1: of dangers that a state's secret would. Now, let's turn

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Speaker 1: from the CIA to the FBI. In a case originally

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Speaker 1: brought by three Muslim men who claimed they were targets

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Speaker 1: of an FBI dragnet surveillance program only because of their

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Speaker 1: religion like a zoobay there's this case arises after nine

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Speaker 1: eleven and some of the credible overreaction that our government

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Speaker 1: took in terms of law enforcements in this case, they

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Speaker 1: infiltrated Muslim community, including taping conversations in a mosque simply

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Speaker 1: because the FBI wanted to get tabs on what was

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Speaker 1: going on to make sure there was no terantsort as

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Speaker 1: a proactive measure. In this case, there were about eleven

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Speaker 1: different claims that were brought Fourth Amendment, religion claims and

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Speaker 1: so forth, and in this particular case, the Ninth Circuit

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Speaker 1: overturned the District Court and held that some of the

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Speaker 1: claims could go forward. And as in Zooby, there one

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Speaker 1: of the claims that the government had used as a

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Speaker 1: defense was state secrets that they didn't want to disclose, methodology, names,

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Speaker 1: and the means by which this illegal surveillance took place.

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Speaker 1: And Ninth Circuit limited the state secrets as they did

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Speaker 1: in zoo Beta, holding that the district court had to

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Speaker 1: make a narrow decision about what was actually a state

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Speaker 1: secret and what was legal and what was not. And

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Speaker 1: the Ninth Circuit, in doing this, adopted a view that

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Speaker 1: the FISA Act, the Foreign Intelligence Surveillance Act, actually modified

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Speaker 1: this common law state secrets privilege and narrowed it so

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Speaker 1: that the result would not be dismissal of the case,

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Speaker 1: but rather just in camera inspection by the lower court

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Speaker 1: to determine what in fact had to be excised. So

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Speaker 1: this is the Ninth Circuits suggesting that the state secrets

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Speaker 1: privilege goes too far. Considering this and Zoo beta is

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Speaker 1: the Court taking an interest in state secrets? The Court

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Speaker 1: is clearly taking an interest in state secrets that it

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Speaker 1: has not returned to state secrets really since the Reynolds

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Speaker 1: case during the Cold War. And they may use these

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Speaker 1: two cases together to suggest the exact contours of the doctrine.

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Speaker 1: They don't have to use many other technical issues involved

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Speaker 1: in the case, but the clear import the least at

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Speaker 1: first glance, would be that the Court wants to say,

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Speaker 1: this is a common law privilege, how far does it extend?

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Speaker 1: How should it be applied attorney to immigration? The Supreme

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Speaker 1: Court is going to consider whether federal courts can review

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Speaker 1: decisions by immigration officials, and a question that both parties

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Speaker 1: of the appeal asked the justices to take up. But

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Speaker 1: lower courts are split. So this is a case on

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Speaker 1: the first glance has to do with just trying to

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Speaker 1: reconcile a a split in the circuits, but it does

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Speaker 1: have to do also with control of of administrative agencies.

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Speaker 1: Here the Bureau of Immigration Appeals and the Court in

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Speaker 1: a variety of cases, is suggesting that it is concerned

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Speaker 1: by the unreviewable discretion and power that administrative agencies wield.

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Speaker 1: So it might be that the Court is taking this

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Speaker 1: case just to vet the question about how much we

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Speaker 1: want to re statutes to allow them to preclude judicial review.

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Speaker 1: In this case, Um, it's actually a very narrow case.

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Speaker 1: They had to do what they discretionary right to ask

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Speaker 1: for discretionary relief from the agency to stay in this country,

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Speaker 1: even though because of the fact that the individual here

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Speaker 1: has a job and there's a what end you can

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Speaker 1: if you have a good job, you can ask for

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Speaker 1: discretionary relief, and the agency and the two to one

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Speaker 1: vote had turned him down because he had either negligently

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Speaker 1: or purposefully in the past check off a box that

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Speaker 1: he was UM a U. S citizen when he was

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Speaker 1: applying for a driver's license, and they used that reason

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Speaker 1: to say you can't apply for discretionary relief. And the

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Speaker 1: courts said that they read the the the statute to

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Speaker 1: preclude review over facts, allowing petitions for discretionary relief, but

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Speaker 1: not for laws and any kind of legal challenge. So

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Speaker 1: it's a very narrow case. In terms of whether you

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Speaker 1: can have factual review. But it does go then sort

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Speaker 1: of immunize the agency from any kind of judicial review,

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Speaker 1: at least with respect to factual determinations. And so again

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Speaker 1: the court may take it just to clean up and

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Speaker 1: make sure that the courts are all sort of uniform

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Speaker 1: and interpreting this right to have a discretionary appeal, or

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Speaker 1: they may also be looking at this because they are

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Speaker 1: reluctant to allow a preclusion and review provision to um

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Speaker 1: immunize a agency from any kind of judicial oversight. Let's

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Speaker 1: turn to another case involving agencies and medicare reimbarrassment. This

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Speaker 1: involves the controversial Chevron doctrine, which basically says that courts

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Speaker 1: have to defer to government agencies when a law's language

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Speaker 1: is ambiguous. So in some ways the American hospital cases

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Speaker 1: are very um detailed. Question about medicare reimbursement at different rates,

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Speaker 1: and the question is can the agency um change the

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Speaker 1: rate of reimbursements that it had previously recognized And but

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Speaker 1: the interesting issue that comes up is that the agency's

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Speaker 1: power to change the rates of reimbursement um stem from

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Speaker 1: language in the statute that allows them to calculate and

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Speaker 1: adjust reimbursements as they find necessary. And that's what the

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Speaker 1: agency did. But it's very broad language adjustment power. And

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Speaker 1: can this adjustment power be used by the agency to

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Speaker 1: change the methodology with which they had imburst hospitals for

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Speaker 1: drug purchases in the past. So the Chevron doctrine is

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Speaker 1: implicated because if you defer to all reasonable agency constructions

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Speaker 1: of the term of open ended terms like adjustment, in essence,

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Speaker 1: you're giving agencies incredible power. So this case may be

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Speaker 1: used as a reason to once again limit deference to

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Speaker 1: administrative agencies interpretations of statutes when they are so open ended,

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Speaker 1: and we could give rise to expanded agency power. So

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Speaker 1: just like a power to if the term in the

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Speaker 1: statute is power to modify or power to adjust, Chevron

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Speaker 1: jefference used in that way leads to a great expanse,

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Speaker 1: can lead to a great expanse of agency power. And

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Speaker 1: so the court might limit Chevron in some other the

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Speaker 1: means or as with you know, as justice course that

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Speaker 1: should say he wants to get rid of all of

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Speaker 1: it all together. How many of the justices have expressed

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Speaker 1: a desire just to get rid of the Chevron deference well,

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Speaker 1: what's what's fascinating about We have no idea about Justice Barrett,

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Speaker 1: by the way, but what's fascinating about Justice course, Justice

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Speaker 1: Kavanaugh is they believe in expanded presidential power, even if

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Speaker 1: it's never been recognized in the past. But they believe

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Speaker 1: in whigdling you down power of the very agencies below

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Speaker 1: the president um and so we Justice so Leto would

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Speaker 1: probably join in with him, maybe Justice Thomas as well,

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Speaker 1: And so it might turn on what Justice Barrett thinks.

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Speaker 1: And she really has not had the opportunity to weigh in.

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Speaker 1: In terms of the determinants of Chevron doctrine, I would

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Speaker 1: expect that this is not going to be the case

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Speaker 1: where they will dismantled Chevron altogether. That I could be wrong,

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Speaker 1: but rather it does cry out for a limitation that

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Speaker 1: many have argued for before, suggesting that when an agency

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Speaker 1: can interpret a provision so as to expand its power,

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Speaker 1: that's when the reasonableness deference should be discarded, because we

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Speaker 1: need a check on an agency to make sure that

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Speaker 1: they don't aggradize their own power at the expense of

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Speaker 1: the regulated public. Thanks so much, how for giving us

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Speaker 1: that introduction to next term at the Supreme Court. That's

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Speaker 1: Professor Harold Crent of the Chicago Camp College of Law

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Speaker 1: coming up next. The Cleveland Indians are changing their name.

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Speaker 1: But what about the other team named the Cleveland Guardians.

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Speaker 1: This is Bloomberg. The DC Court of Appeals has ordered

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Speaker 1: the release of a man accused of taking part in

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Speaker 1: a pepper spray assault on police during the January six

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Speaker 1: Capital Riot, a reversal of the order of the district court.

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Speaker 1: Judge joining me is former federal prosecutor Robert Mints, a

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Speaker 1: partner Ma Carter in English. First of all, is it

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Speaker 1: unusual for an appeals court to be reviewing decisions by

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Speaker 1: district court judges about whether to release defendants on bail.

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Speaker 1: It really is unusual for courts of appeal to be

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Speaker 1: taking a look at those decisions, because they're typically left

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Speaker 1: up to the trial judge. The trial judge is the

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Speaker 1: one who has the most information and here's the arguments

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Speaker 1: from counsel, and usually makes that decision based upon two factors,

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Speaker 1: whether the individuals a danger to themselves or a danger

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Speaker 1: to others. And if the court makes a finding that

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Speaker 1: either one of those facts exists, the court will detain

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Speaker 1: an individual pre trial and they will have to stay

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Speaker 1: in custody until their trial begins. So now, the appeals

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Speaker 1: Court on Monday ordered the release of George Tanio's He

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Speaker 1: was accused of macing a police officer at the January

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Speaker 1: six Capital riot and attacking officer Brian sick Nick, who

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00:25:06,320 --> 00:25:10,280
Speaker 1: died after the attack. So why did the appeals court

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Speaker 1: decide that he should be released when the judge decided

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Speaker 1: he should be detained in this case? The Court of

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Speaker 1: Appeals took a look at the lower court ruling and

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Speaker 1: decided that the judge had aired in detaining this defendant

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Speaker 1: pre trial. The Court of Appeals looked at the individual's

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Speaker 1: past record and saw that he had no past felony convictions,

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Speaker 1: he had no ties to any extremist organizations, and no

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Speaker 1: post januarystics criminal behavior that would otherwise show that he

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Speaker 1: posed the danger to the community. Another factor that has

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Speaker 1: weighed in on these decisions is whether or not there's

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Speaker 1: evidence of premeditation. So in certain cases where prosecutors have

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Speaker 1: been able to show that the defendants planned to commit

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Speaker 1: violent acts, that they brought pepper spray or other weapons

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Speaker 1: to the January six riot and intended to use him

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Speaker 1: on police, officers. Some of those defendants have also been

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Speaker 1: detained pre trial as evidence that they pose a danger

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Speaker 1: to the community and if released, would continue to pose

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Speaker 1: a danger to the community. What's interesting is that Tanios

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Speaker 1: was seen in a video with Julian Cater, according to

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Speaker 1: an FBI FI Davit quote, working to assault law enforcement

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Speaker 1: officers with an unknown chemical substance by spraying officers directly

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Speaker 1: in the face and eyes. Yet a panel of this

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Speaker 1: same appeals court, at the DC Circuit Court of Appeals

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Speaker 1: affirmed a judge's order keeping Cater in custody. How do

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Speaker 1: you reconcile those two Well, I think it shows how

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Speaker 1: difficult these decisions are and that they are made on

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Speaker 1: a case by case basis. Here you can have a

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Speaker 1: situation where you have different panels of the Court of

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Speaker 1: Appeals looking at the same case and coming up with

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Speaker 1: different decisions. One of the reasons you have these disparate

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Speaker 1: rulings on facts that may seem somewhat similar goes to

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Speaker 1: the fact that this was strict an unprecedented circumstance, the

437
00:27:03,000 --> 00:27:06,560
Speaker 1: January six riots, or something that judges have really never

438
00:27:06,720 --> 00:27:10,159
Speaker 1: dealt with before, and they're weighing the threat that these

439
00:27:10,240 --> 00:27:14,480
Speaker 1: individuals may pose to the community against their individual rights.

440
00:27:14,720 --> 00:27:17,280
Speaker 1: And one of the most difficult questions that are faced

441
00:27:17,320 --> 00:27:20,280
Speaker 1: by judges in making this decision is whether or not

442
00:27:20,480 --> 00:27:23,800
Speaker 1: these defendants are likely to repeat any of the conduct

443
00:27:23,840 --> 00:27:27,119
Speaker 1: that occurred on January six. Some judges have looked at

444
00:27:27,160 --> 00:27:29,840
Speaker 1: the conduct of the defendants and decided they pose a

445
00:27:29,920 --> 00:27:33,200
Speaker 1: continuing danger to the community. Other judges will have looked

446
00:27:33,240 --> 00:27:36,520
Speaker 1: at the very same fact and decided that the circumstances

447
00:27:36,600 --> 00:27:39,600
Speaker 1: of January six were so unique that they will not

448
00:27:39,840 --> 00:27:43,600
Speaker 1: pose a danger to repeat that conduct, and therefore should

449
00:27:43,600 --> 00:27:46,880
Speaker 1: not be held pre trial. The d C Circuit Court

450
00:27:46,920 --> 00:27:51,240
Speaker 1: of Appeals in a July opinion written by Judge Robert Wilkins,

451
00:27:51,600 --> 00:27:55,760
Speaker 1: that opinion has become the sort of framework for decisions

452
00:27:56,040 --> 00:28:00,840
Speaker 1: on free trial detention, and Wilkins said that everyone who

453
00:28:01,000 --> 00:28:04,160
Speaker 1: entered the capital on January six did not necessarily pose

454
00:28:04,280 --> 00:28:08,240
Speaker 1: the same risk of danger, and the preventive detention statute

455
00:28:08,560 --> 00:28:11,639
Speaker 1: should apply to the January six defendants the same as

456
00:28:11,680 --> 00:28:14,800
Speaker 1: it applies to everyone else. So is he saying that,

457
00:28:15,280 --> 00:28:18,280
Speaker 1: you know, some people who committed violence that day can

458
00:28:18,359 --> 00:28:20,840
Speaker 1: get out. I think it does. I think with the

459
00:28:20,920 --> 00:28:23,840
Speaker 1: judge is saying that there are no automatic rule that

460
00:28:23,920 --> 00:28:27,080
Speaker 1: would require someone to be detained pre trial or not.

461
00:28:27,640 --> 00:28:30,920
Speaker 1: The judge in this case looked at one individual and

462
00:28:31,000 --> 00:28:34,600
Speaker 1: said it was not obviously wrong to conclude that statements

463
00:28:34,760 --> 00:28:37,520
Speaker 1: as a whole posed danger to the community. In this

464
00:28:37,640 --> 00:28:41,479
Speaker 1: particular case, Judge Wilkins was talking about a defendant who

465
00:28:41,560 --> 00:28:45,240
Speaker 1: had to pass history of expressing biases against African Americans

466
00:28:45,320 --> 00:28:48,480
Speaker 1: and Jews, and the judge viewed that this violent rhetoric,

467
00:28:48,840 --> 00:28:51,920
Speaker 1: in connection with the events of January six, made him

468
00:28:52,000 --> 00:28:56,160
Speaker 1: unsuitable for pre trial release. It seems that prosecutors are

469
00:28:56,200 --> 00:28:59,959
Speaker 1: not asking for detention of all the suspects. You are

470
00:29:00,080 --> 00:29:04,840
Speaker 1: former federal prosecutor, what kind of a wighing process do

471
00:29:04,960 --> 00:29:07,440
Speaker 1: you go through when you're deciding whether or not you

472
00:29:07,560 --> 00:29:12,880
Speaker 1: want to hold someone in prison pending trial. That's a

473
00:29:12,920 --> 00:29:17,200
Speaker 1: great question, because it's a very difficult assessment to make. Obviously,

474
00:29:17,440 --> 00:29:20,880
Speaker 1: denying somebody their freedom even before they get their day

475
00:29:20,920 --> 00:29:24,880
Speaker 1: in court is a very serious issue, and typically individuals

476
00:29:24,960 --> 00:29:28,240
Speaker 1: are released on bond so that they can prepare for trial,

477
00:29:28,560 --> 00:29:30,960
Speaker 1: so they can meet with their counsel, and in fact,

478
00:29:31,280 --> 00:29:33,560
Speaker 1: the situation where they have not yet been found guilty

479
00:29:33,600 --> 00:29:36,520
Speaker 1: of committing any offense, and so it stands to reason

480
00:29:36,600 --> 00:29:39,080
Speaker 1: that they should not be sitting in prison before their

481
00:29:39,120 --> 00:29:42,720
Speaker 1: trial even starts. But some cases are unique, and some

482
00:29:42,920 --> 00:29:46,520
Speaker 1: cases create situations where an individual is a risk to

483
00:29:46,640 --> 00:29:49,400
Speaker 1: the community, where there's a danger that the person could

484
00:29:49,400 --> 00:29:52,960
Speaker 1: be released and perhaps commit another violent act, and those

485
00:29:52,960 --> 00:29:57,200
Speaker 1: are the circumstances that prosecutors ask for pre trial detention

486
00:29:57,680 --> 00:30:00,520
Speaker 1: in order to protect the community. But the facts there

487
00:30:00,560 --> 00:30:04,160
Speaker 1: have to be specific to the individual defendant, and prosecutors

488
00:30:04,200 --> 00:30:07,800
Speaker 1: have the burden of establishing that this defendant is a

489
00:30:07,880 --> 00:30:10,520
Speaker 1: potential danger to the community in order to ask for

490
00:30:10,600 --> 00:30:15,040
Speaker 1: pre trial attention. So we haven't seen any charges that

491
00:30:15,200 --> 00:30:18,960
Speaker 1: I know of of sedition or a treason. Why do

492
00:30:19,040 --> 00:30:22,200
Speaker 1: you think they're not charging that, Well, there was talk

493
00:30:22,360 --> 00:30:27,800
Speaker 1: about charges of sedition right after the January Sticks riot. Tradition,

494
00:30:28,000 --> 00:30:32,400
Speaker 1: as it generally understood, means inciting revolts against the government,

495
00:30:32,840 --> 00:30:36,120
Speaker 1: and there was talk specifically about a group within the

496
00:30:36,200 --> 00:30:40,280
Speaker 1: Department of Justice evaluating whether sedition charges would be brought

497
00:30:40,360 --> 00:30:43,360
Speaker 1: against the Riders, And there was even an interview by

498
00:30:43,400 --> 00:30:46,960
Speaker 1: the then acting U S Attorney Michael Sherwin for the

499
00:30:47,040 --> 00:30:51,040
Speaker 1: District of Columbia, who said that prosecutors were mulling seditious

500
00:30:51,080 --> 00:30:54,120
Speaker 1: conspiracy charges against some of the riders, and he even

501
00:30:54,200 --> 00:30:55,760
Speaker 1: went so far as to say to you that he

502
00:30:55,840 --> 00:30:59,400
Speaker 1: believed the fact do support those charges, and he thinks

503
00:30:59,440 --> 00:31:02,240
Speaker 1: that those charge I just will ultimately be be brought.

504
00:31:02,720 --> 00:31:05,480
Speaker 1: But as you pointed out, those charges have not been brought,

505
00:31:05,840 --> 00:31:09,360
Speaker 1: and nor have charges of treason been brought. Another charge

506
00:31:09,400 --> 00:31:11,960
Speaker 1: that is very difficult to prove, and the reason for

507
00:31:12,040 --> 00:31:15,400
Speaker 1: that is basically that these charges have rarely been brought.

508
00:31:15,520 --> 00:31:19,000
Speaker 1: There've been only ten cases of treason in the history

509
00:31:19,040 --> 00:31:22,720
Speaker 1: of the United States. And tradition is also a difficult

510
00:31:22,840 --> 00:31:26,040
Speaker 1: charge to bring, and it is something that has rarely

511
00:31:26,160 --> 00:31:29,320
Speaker 1: been successful when it has been charged. There was a

512
00:31:29,400 --> 00:31:33,720
Speaker 1: recent case in which individuals in Michigan were charged a

513
00:31:33,840 --> 00:31:37,080
Speaker 1: militia group that brought in uprising against the government. But

514
00:31:37,240 --> 00:31:41,080
Speaker 1: even in that case, the judges throughout this sedition conspiracy charges,

515
00:31:41,280 --> 00:31:44,720
Speaker 1: saying that the hateful diet tribes used by the defendants

516
00:31:44,760 --> 00:31:47,920
Speaker 1: were protected by the First Amendment. So the problem with

517
00:31:48,080 --> 00:31:50,400
Speaker 1: the charge of tradition is that it brings into the

518
00:31:50,480 --> 00:31:54,000
Speaker 1: prosecution the debate as to whether or not the defendants

519
00:31:54,160 --> 00:31:58,000
Speaker 1: are truly urging a revolt against the government, or are

520
00:31:58,080 --> 00:32:02,560
Speaker 1: they engaging in some form of protected political speech. That's

521
00:32:02,640 --> 00:32:06,120
Speaker 1: something that makes the case much more difficult for prosecutors.

522
00:32:06,280 --> 00:32:09,520
Speaker 1: But I think that's why we're seeing the obstruction charges

523
00:32:09,720 --> 00:32:13,400
Speaker 1: that are being charged here, rather than prosecutors charging sedition

524
00:32:13,640 --> 00:32:17,240
Speaker 1: or treason. So, Bob, there have been many prosecutors that

525
00:32:17,400 --> 00:32:21,840
Speaker 1: have been accused of overcharging so here. Why not just

526
00:32:22,480 --> 00:32:26,920
Speaker 1: charge sedition along with lesser charges and see if you

527
00:32:26,960 --> 00:32:29,440
Speaker 1: can prove it or not. Well, sometimes you do see

528
00:32:29,480 --> 00:32:33,200
Speaker 1: prosecutors throwing a number of charges into a case and

529
00:32:33,240 --> 00:32:36,440
Speaker 1: then ultimately letting the jury decide if the more serious

530
00:32:36,560 --> 00:32:40,680
Speaker 1: charges apply. But it does also open the door to

531
00:32:40,920 --> 00:32:44,680
Speaker 1: other defenses, and I think that's what prosecutors are worrying about.

532
00:32:44,960 --> 00:32:48,720
Speaker 1: There is a potential as a prosecutor when you bring charges,

533
00:32:49,080 --> 00:32:53,160
Speaker 1: if it's perceived by the jury that you're overcharging the case,

534
00:32:53,560 --> 00:32:56,440
Speaker 1: that you're trying to bring more serious charges than the

535
00:32:56,600 --> 00:33:00,480
Speaker 1: evidence will sustain, that that can sometimes backs by and

536
00:33:00,640 --> 00:33:04,680
Speaker 1: ultimately result in a jury rejecting your case entirely. And

537
00:33:04,800 --> 00:33:07,480
Speaker 1: that's why I think prosecutors have backed away from the

538
00:33:07,560 --> 00:33:11,040
Speaker 1: addition charges. They think that it opens the door into

539
00:33:11,160 --> 00:33:14,520
Speaker 1: questions about with the intent of these defendants, where they're

540
00:33:14,520 --> 00:33:17,160
Speaker 1: really trying to overthrow the government, or whether they're simply

541
00:33:17,240 --> 00:33:20,440
Speaker 1: exercising their political free speech, and they want to avoid

542
00:33:20,560 --> 00:33:25,280
Speaker 1: those discussions and focus instead on their conduct rather than

543
00:33:25,320 --> 00:33:29,600
Speaker 1: their speech. So prosecutors have charge obstruction of an official

544
00:33:29,760 --> 00:33:34,960
Speaker 1: proceeding and at least two five defendants according to the

545
00:33:35,040 --> 00:33:38,120
Speaker 1: Washington Post. What does that signal to you that that's

546
00:33:38,160 --> 00:33:41,080
Speaker 1: the charge that they're going with. Well, I think prosecutors

547
00:33:41,160 --> 00:33:44,320
Speaker 1: are taking the safer route. They do not want to

548
00:33:44,400 --> 00:33:47,360
Speaker 1: see a lot of acquittals in these cases, should these

549
00:33:47,440 --> 00:33:50,840
Speaker 1: cases ultimately proceed to trial, and so they're focusing on

550
00:33:51,240 --> 00:33:55,040
Speaker 1: the conduct of the defendants rather than getting involved in

551
00:33:55,120 --> 00:33:58,400
Speaker 1: a lot of the speech related charges. Here, they are

552
00:33:58,480 --> 00:34:02,080
Speaker 1: looking at what the individual defendants did, how they stormed

553
00:34:02,120 --> 00:34:06,000
Speaker 1: the Capitol, when they committed violent acts, and ultimately linking

554
00:34:06,120 --> 00:34:09,279
Speaker 1: to that obstructing the official proceeding, which in this case

555
00:34:09,640 --> 00:34:12,759
Speaker 1: was the Joint House and sended session on January sticks

556
00:34:12,840 --> 00:34:16,560
Speaker 1: certifying the electoral College vote. And in this way they

557
00:34:16,600 --> 00:34:21,319
Speaker 1: can focus the prosecution on the individual acts by each

558
00:34:21,360 --> 00:34:26,120
Speaker 1: of those defendants and argue that ultimately, individually and collectively

559
00:34:26,440 --> 00:34:30,759
Speaker 1: it led to an obstructing of that proceeding, since lawmakers

560
00:34:31,040 --> 00:34:33,759
Speaker 1: had to flee the chambers as the vote could not

561
00:34:34,000 --> 00:34:37,600
Speaker 1: continue as a result of the writer's actions. A federal

562
00:34:37,719 --> 00:34:43,240
Speaker 1: judge has recently warned that that charge could be unconstitutionally vague.

563
00:34:43,960 --> 00:34:47,280
Speaker 1: Explain what his concerns are. What the judge was talking

564
00:34:47,360 --> 00:34:49,759
Speaker 1: about is the fact that the government could face the

565
00:34:49,880 --> 00:34:54,000
Speaker 1: constitutional vagueness problem if it cannot articulate to the court

566
00:34:54,440 --> 00:34:59,799
Speaker 1: or put individuals clearly unnoticed. How corruptly obstructing or influencing

567
00:35:00,000 --> 00:35:04,920
Speaker 1: Congress differs from ordinary trespass, creating, or disorderly conduct in

568
00:35:04,960 --> 00:35:08,600
Speaker 1: the capital. It really comes down to the question of

569
00:35:08,760 --> 00:35:12,920
Speaker 1: what corrupt obstruction means and whether or not that is

570
00:35:13,000 --> 00:35:16,440
Speaker 1: something that could be viewed as an overcharge and something

571
00:35:16,560 --> 00:35:19,640
Speaker 1: that really is nothing different than a disorderly person's defense.

572
00:35:20,000 --> 00:35:24,000
Speaker 1: The statute of prosecutors are using here is an expansion

573
00:35:24,120 --> 00:35:27,719
Speaker 1: of the obstruction of justice statute that was adopted by

574
00:35:27,800 --> 00:35:30,560
Speaker 1: Congress in two thousand and two as a result of

575
00:35:30,640 --> 00:35:34,720
Speaker 1: Starbanes Oxley, and what it does is it adds language

576
00:35:34,760 --> 00:35:38,880
Speaker 1: that says whoever corruptly obstructs, influences, or impedes any official

577
00:35:38,960 --> 00:35:42,360
Speaker 1: proceding is guilty of a criminal offense. But some defense

578
00:35:42,440 --> 00:35:46,520
Speaker 1: lawyers have questioned whether it's this expansion really goes too far,

579
00:35:46,840 --> 00:35:50,600
Speaker 1: whether Congress intended to only apply to financial fraud or

580
00:35:50,719 --> 00:35:54,359
Speaker 1: to traditional obstruction of justice crimes took as prosecutors are

581
00:35:54,480 --> 00:35:58,479
Speaker 1: charging here. What the judge is essentially concerned about here

582
00:35:58,960 --> 00:36:01,920
Speaker 1: is that these files may not take place for a

583
00:36:02,000 --> 00:36:05,720
Speaker 1: couple of years at least, and if it ultimately turns

584
00:36:05,800 --> 00:36:10,719
Speaker 1: out that the charge is constitutionally deficient, that this will

585
00:36:10,760 --> 00:36:14,040
Speaker 1: create a huge problem, potentially even a double jeopardy problem

586
00:36:14,360 --> 00:36:18,120
Speaker 1: for prosecutors. So the judge is really doing prosecutors a

587
00:36:18,239 --> 00:36:23,120
Speaker 1: favor by raising this issue now and allowing prosecutors to

588
00:36:23,239 --> 00:36:27,600
Speaker 1: make an argument that the statute is not unconstitutionally vague.

589
00:36:28,000 --> 00:36:31,560
Speaker 1: The one downside for prosecutors is that by raising this

590
00:36:31,800 --> 00:36:35,160
Speaker 1: constitutional issue now, it throws a bit of a monkey

591
00:36:35,320 --> 00:36:39,640
Speaker 1: rank into plea discussions. Looking at this case with the

592
00:36:39,800 --> 00:36:43,400
Speaker 1: video evidence they have, and they have evidence after the fact,

593
00:36:43,640 --> 00:36:45,960
Speaker 1: does it seem like these are going to be easy

594
00:36:46,120 --> 00:36:50,359
Speaker 1: cases to prosecute? Well, these cases do have a lot

595
00:36:50,600 --> 00:36:54,040
Speaker 1: of videotaped evidence, and all of the defendants who are

596
00:36:54,120 --> 00:36:57,719
Speaker 1: charging these cases appear on some form of video, so

597
00:36:57,840 --> 00:37:01,680
Speaker 1: their conduct is really irrefut utible. What they did, what

598
00:37:01,880 --> 00:37:03,920
Speaker 1: they were doing, what they said. A lot of that

599
00:37:04,000 --> 00:37:07,000
Speaker 1: has been picked up on microphones, and so there's a

600
00:37:07,080 --> 00:37:09,640
Speaker 1: lot of evidence that prosecutors have to work with here,

601
00:37:09,680 --> 00:37:11,560
Speaker 1: and I do think ultimately we're gonna see a lot

602
00:37:11,640 --> 00:37:15,279
Speaker 1: of these cases resolved in a guilty play rather than

603
00:37:15,400 --> 00:37:19,120
Speaker 1: going to trial because of that overwhelming evidence. But again,

604
00:37:19,200 --> 00:37:22,040
Speaker 1: prosecutors have to be careful not to overcharge these cases,

605
00:37:22,360 --> 00:37:23,880
Speaker 1: and at the same time, they also have to be

606
00:37:23,960 --> 00:37:27,960
Speaker 1: careful not to treat different defendants with similar charges against

607
00:37:28,000 --> 00:37:30,400
Speaker 1: them differently. So there has to be some kind of

608
00:37:30,719 --> 00:37:35,680
Speaker 1: consistency and uniformity to how prosecutors ultimately treat these defendants

609
00:37:35,840 --> 00:37:38,640
Speaker 1: who are in similar situations. At the end of the day,

610
00:37:39,160 --> 00:37:41,839
Speaker 1: each of these defendants will be treated individually based upon

611
00:37:41,920 --> 00:37:46,040
Speaker 1: their individual conduct, and ultimately prosecutors have to ensure that

612
00:37:46,200 --> 00:37:48,879
Speaker 1: they are treated fairly and in an even handed way

613
00:37:49,200 --> 00:37:52,399
Speaker 1: that we don't have sentences for some defendants that wind

614
00:37:52,480 --> 00:37:55,520
Speaker 1: up being much harsher than other defendants who did essentially

615
00:37:55,600 --> 00:37:59,800
Speaker 1: the same criminal conduct. Thanks Bob. That's mcarter in English.

616
00:38:00,120 --> 00:38:03,400
Speaker 1: Coming up next, the next Solicitor General. This is Bloomberg,