Speaker 1: People are confused with the ruling. Um. And you know,
Speaker 1: I think that the concern that some families had had
Speaker 1: in the very beginning that this day was gonna come
Speaker 1: where they were going to have to relive another trial. Uh,
Speaker 1: and you know they shouldn't have to relive a trial.
Speaker 1: That was former Boston Mayor Marty Walsh a year ago
Speaker 1: after a federal appeals court throughout the death sentence of
Speaker 1: Boston marathon bomber Joe Harsar Naive. That decision will now
Speaker 1: be at the center of one of the biggest cases
Speaker 1: the Supreme Court will hear when it returns in October.
Speaker 1: My guest is constitutional law professor Harold Crent of the
Speaker 1: Chicago Kent College of Law. How what issues will the
Speaker 1: Supreme Court be considering in deciding whether to reinstate the
Speaker 1: death penalty forced Our naive case rises out of the
Speaker 1: awful Boston marathon bombing, and of course was caught red handed.
Speaker 1: He was sentenced to death, and two challenges in this
Speaker 1: case that the first circuit to overturn not the conviction
Speaker 1: but the imposition of the death penalty. The two grounds
Speaker 1: were first that the defense attorney was not permitted to
Speaker 1: question the jurors about the extent to which they had
Speaker 1: read about the bombing prior to being seated as jurors.
Speaker 1: And second, at the capital phase of the mitigation phase,
Speaker 1: Tarnaye argued principally that he was under the spell and
Speaker 1: influence of his older brother, who had been killed in
Speaker 1: the shootout with the police, and that he had tried
Speaker 1: to introduce evidence of a grizzly set of murders that
Speaker 1: the older brother had committed previously, including dominating a friend
Speaker 1: and trying to get the friend to help him commit
Speaker 1: these murders, and the court had rejected the defense's effort
Speaker 1: to introduce this information. So those are the two issues
Speaker 1: raised to the Supreme Court. Why take this case? Because
Speaker 1: the context has changed since Attorney General Merrick Garland has
Speaker 1: stopped all federal executions. I think that the Supreme Court
Speaker 1: might be taking this case not just because of this notoriety,
Speaker 1: but to investigate the use of harmless error in death
Speaker 1: penalty cases. And indeed, the Supreme Court took another case
Speaker 1: where the harmless air doctrine may arise. That case arose
Speaker 1: from when a defendant was shackled in the jury, just
Speaker 1: as we saw in the Chicago seventh movie recently, and
Speaker 1: the Sixth Circuit reversed the conviction on the ground that
Speaker 1: the shackling of a defendant could never be innocent, and
Speaker 1: I think the court took that as well to look
Speaker 1: at the harmless air doctrine. Obviously, the evidence was overwhelming
Speaker 1: with respect to Turnaye, and that may have influenced the
Speaker 1: Supreme Court to take the case. Politically, this is fascinating
Speaker 1: because President Biden has said that he's an opponent of
Speaker 1: the death penalty, but he is acquiesced into allowing the
Speaker 1: Supreme Court to hear this case. Somewhat of a head
Speaker 1: scratcher in terms of why he is allowing the case
Speaker 1: to go forward. The Biden administration could have easily gotten
Speaker 1: rid this case by just saying that they would never
Speaker 1: enforce the death penalty. And but obviously he's willing to
Speaker 1: allow the Court to make these kinds of decisions even
Speaker 1: if he won't use the death penalty during his term.
Speaker 1: So let's turn out to a case that's destined to
Speaker 1: be one of the most watched and perhaps controversial of
Speaker 1: next term, centering on a Mississippi law that would ban
Speaker 1: abortions in almost all cases after fifteen weeks of pregnancy.
Speaker 1: What is Mississippi asking here? This case isn't petic because
Speaker 1: it directly challenges the viability test that the Supreme Court
Speaker 1: has now upheld in the versus Raid and in Planned
Speaker 1: Parenthood versus Casey. Under that scheme, the state had insufficient
Speaker 1: reason or insubition justifications to regulate the women's right to
Speaker 1: choose prior to viability. Under this Mississippi statute or the
Speaker 1: Gestational Age Act, the line that's drawn is really rather
Speaker 1: one of fifteen months, So the point would have to
Speaker 1: jettisone or get rid of the Row framework in order
Speaker 1: to oppose the law here, and it may well do that.
Speaker 1: So this is an incredibly significant decision, and what the
Speaker 1: Court would be replace it with is unclear, except perhaps
Speaker 1: to give the green like the states to ban abortion,
Speaker 1: as many did prior to Roversus Weight. So Mississippi is
Speaker 1: asking for a sweeping ruling here. But can the Justices
Speaker 1: decide this case without overturning Row or Casey. I don't
Speaker 1: think so. That's what's so telling about this case, and
Speaker 1: that they chose to take this case is because there's
Speaker 1: no way that I can see for them to uphold
Speaker 1: the gestational Age Act and still be consistent with the
Speaker 1: framework of Rovers's way. They might adopt a different framework,
Speaker 1: but it would not be the one that focuses on viability.
Speaker 1: As their precedents dictate. The issue in this case hadn't
Speaker 1: divided the lower court, so they could easily have not
Speaker 1: taken this case right. What's amazing is that that took
Speaker 1: the case because this is not a case as with
Speaker 1: others chipping away the abortion right. It is absolutely a
Speaker 1: frontal attack, at least a frontal attack on the framework
Speaker 1: set out in Rovers's way in in Casey, the Supreme
Speaker 1: Court is going to consider making it easier for people
Speaker 1: to walk around with a gun. I mean, that's just
Speaker 1: backwards and dangerous. So I heard that news in my
Speaker 1: heart sank. Like New York City Mayor Bill de Blasio,
Speaker 1: the hearts of gun control advocates across the country sank
Speaker 1: when the Supreme Court announced it would discide whether to
Speaker 1: allow most people to carry a handgun in public. I've
Speaker 1: been talking to Professor Harold Crent of the Chicago Kent
Speaker 1: College of Law, so how this will be the first
Speaker 1: time in more than a decade that the Supreme Court
Speaker 1: takes up a major second Amendment case. What's at stake here?
Speaker 1: The Court has stayed away, as you mentioned, from Second
Speaker 1: Amendment cases for ten years, and the lower courts are split,
Speaker 1: and how to analyze cases when there are certain state
Speaker 1: regulations about background checks, state regulations about what kind of
Speaker 1: guns one can purchase, and state regulations as in this
Speaker 1: case about carrying a pistol concealed carry law which would
Speaker 1: allow someone to carry a pistol in public. And so
Speaker 1: they've divided both in terms of what kind of scrutiny
Speaker 1: to apply as well as in results. Most courts have
Speaker 1: provided the universe into a core and non core gun
Speaker 1: ownership issue. Owning guns at home would be core, having
Speaker 1: an assault weapon would not be core. And the question
Speaker 1: then that's puzzled these courts is whether having a pistol
Speaker 1: in public is such a core right, which then could
Speaker 1: only be limited if there is a compelling governmental state interest.
Speaker 1: And you know, the courts are split and their history
Speaker 1: is split. Some courts have relied upon history and said
Speaker 1: that there is no kind of ingraining history of waving
Speaker 1: around a pistol in public, or even keeping one concealed
Speaker 1: in public, as there is and having hunting rifles or
Speaker 1: and having guns at home. So the courts have been
Speaker 1: split on the historical pedigree of concealed carry as well
Speaker 1: is on the standard of review to apply. So this
Speaker 1: has been your very telling case because the Court will
Speaker 1: have to give some kind of help to lower courts
Speaker 1: about how to analyze the many many Second Amendment cases
Speaker 1: on background checks on licensing that exists, or they may
Speaker 1: take a narrow view and say that in this case,
Speaker 1: New York has said you can only have a license
Speaker 1: if you have good cause, and that good cause is
Speaker 1: open to interpretation in a case by case basis. Do
Speaker 1: you have a fear for your life? Do you live
Speaker 1: in a lousing neighborhood? You know what is the reason
Speaker 1: that you give? And they may decide that that kind
Speaker 1: of subjectivity has no place in the Second Amendment, and
Speaker 1: so they may take a narrow way out and not
Speaker 1: talk about the standard of review at all, but just
Speaker 1: say that states, if they limit a right to carry guns,
Speaker 1: have to do so and object of le verifiable way.
Speaker 1: Looking at the court, you have Justice Brett Kavanagh, who
Speaker 1: joined an opinion with Justice Clarence Thomas, who is an
Speaker 1: avid defender of the Second Amendment that described gun caring
Speaker 1: restrictions as imposing an onerous burden on a fundamental right.
Speaker 1: Where do you see this conservative court on this issue.
Speaker 1: Do they want to move forward with less restrictions on
Speaker 1: the Second Amendment. It's a tough question to predict. In
Speaker 1: terms of the court. I don't think the Court is
Speaker 1: going to go far as Justice Thomas wanted them to.
Speaker 1: He has said in public that this is just like
Speaker 1: the First Amendment, and we shouldn't allow any more kinds
Speaker 1: of restrictions on speech outside the home, and so we
Speaker 1: shouldn't allow restrictions on gun ownership outside the home either.
Speaker 1: On the other hand, the Court has varied Fourth Amendment
Speaker 1: rights whether someone's in the home or outside the home,
Speaker 1: and has done so even this past term. So I
Speaker 1: think that the Court will still be divided. Though my
Speaker 1: guess is that they will strike down the concealed carry
Speaker 1: licensing system that New York has adopted. And I should
Speaker 1: note that Michael Bloomberg, the foundering majority owner of Bloomberg LP,
Speaker 1: the parent company of Bloomberg Radio, is a donor to
Speaker 1: groups that support gun control, including every Town for Gun Safety.
Speaker 1: Now turning to a somewhat less controversial case involving religious rights,
Speaker 1: the Court will consider whether states can exclude religious schools
Speaker 1: from a student aid program because it's used to teach
Speaker 1: religious education. Anybody predicting the outcome of this case would
Speaker 1: have to say that the court will overturn the first
Speaker 1: circuit here and say that the students have a choice
Speaker 1: about whether to use a voucher or funds from the state,
Speaker 1: and if they have the ability to use them in
Speaker 1: a private school, that it would be unconstitutional to prevent
Speaker 1: them from going to use them at a religious private school,
Speaker 1: which in fact is what Maine have required. Maine, because
Speaker 1: it has such small school districts, often give money to
Speaker 1: the students that we don't have enough resources to have
Speaker 1: you go to public school here, so take it to
Speaker 1: a private school of your choice. But they had said
Speaker 1: you can't take it to a private religious school. And again,
Speaker 1: with this court, I'm very confident that they will recognize
Speaker 1: a broader free exercise right and decide that Maine has
Speaker 1: to permit their residents to use the state funds for
Speaker 1: religious education. Well, even before Justice Ammy Coney Barrett got
Speaker 1: on the court, the justices have been ruling in favor
Speaker 1: of religious rights over just about any other rights, and
Speaker 1: this would follow up on the ruling in Espinosa. It's
Speaker 1: very similar to Espinosa. Esponosa was the Montana case, which
Speaker 1: had to do with tax credits, and in this case
Speaker 1: it's not tax credits, it's basically tuition dollars. And I
Speaker 1: think the court is going to follow Espinoza and expand
Speaker 1: it and don't have to expand it that much to
Speaker 1: suggest that the main system is unconstitutional. As well. Last
Speaker 1: night I found this He's Detaining number twenty four. Well's
Speaker 1: your video. They water boarded him a hundred and eighty
Speaker 1: three times. Everything they got from him who was either
Speaker 1: a lie or something they already had. If it works,
Speaker 1: why do you need to do it a hundred and
Speaker 1: eighty three times? Because if what we did to him
Speaker 1: ever came out in the court of law, the case
Speaker 1: is over. The movie, appropriately called The Report, is about
Speaker 1: the CIA's use of torture at black sides following the
Speaker 1: September eleventh attacks and the Senate Intelligence Committees report on
Speaker 1: the CIA's rendition, detention, and Interrogation program, commonly called the
Speaker 1: torture program. Now. The first detainee taken to the CIA's
Speaker 1: first black site, Abou Zu Beta, who was repeatedly tortured
Speaker 1: and water boarded at least eighty three times. Is taking
Speaker 1: his case to the Supreme Court. I've been talking to
Speaker 1: Professor Harold Crant of the Chicago Kent College of Law.
Speaker 1: Zubaida is what's known as a forever prisoner, held without
Speaker 1: formal charges at Guantanamo Bay for fifteen years. What's he
Speaker 1: asking the court? After he was captured in Pakistan, he
Speaker 1: was taken to a CIA black site in Poland where
Speaker 1: he was interrogated and tortured for a great deal of
Speaker 1: time and actually did provide useful information. Zubaida, through his attorneys,
Speaker 1: try to challenge what happened in Poland and suggest that
Speaker 1: Poland was complicit in the CIA's torture campaign, and the
Speaker 1: European Human Rights agree with him, and that set off
Speaker 1: continuing inquiry in Poland. Now, during this Polish investigation, he
Speaker 1: asked for and Poland courts agreed for information from the
Speaker 1: United States which would then shed light on what happened
Speaker 1: in Poland. And he sent a subpoena to two psychologists
Speaker 1: where contractors of the CIA for information about this black
Speaker 1: site in particular where he was held. And these CIA
Speaker 1: contractors had talked publicly about their role in the torture campaign,
Speaker 1: but had not disclosed details about what happened at this
Speaker 1: particular site. And the lower court said that the CIA
Speaker 1: did not have to give up any kind of information
Speaker 1: because of the state secrets privilege, But the Ninth Circuit reversed,
Speaker 1: so the state secrets privilege protects information the government says
Speaker 1: would harm national security if exposed tell us the basis
Speaker 1: of the Ninth circuits reversal relatively controversial because the Ninth
Speaker 1: Circuit said that the lower court should have made a
Speaker 1: line by line determination about the testimony, what testimony would
Speaker 1: be allowed that didn't reveal a state secret and should
Speaker 1: be permitted. And I think that they were influenced by
Speaker 1: the fact that the discussion of these prisons that were
Speaker 1: directed by the CIA is common knowledge, and so they
Speaker 1: thought that the government was pushing too much of this
Speaker 1: information under the rug and that they should not be
Speaker 1: allowed to make a blanket refusal to allow any kind
Speaker 1: of information. So the Ninth Circuit said, you've got to
Speaker 1: make a line by line determination, and the government said
Speaker 1: state secret privilege, you get to dismiss the entire case.
Speaker 1: It's too dangerous to have the court segregate information that's
Speaker 1: permissible already in the public domain, or would not reveal
Speaker 1: a state secret from that, which is problematic. So we'll
Speaker 1: have to see. It's a very strange procedural posture. But nonetheless,
Speaker 1: at the heart of it is the question about state secrets.
Speaker 1: Should we allow it the government or to have an
Speaker 1: immunity because state secrets and not have to respond to
Speaker 1: this request for information, or do we say, okay, it's
Speaker 1: like an evidentiary privilege. And obviously the government wouldn't have
Speaker 1: to disclose anything that's the state secret, but at the
Speaker 1: same time it does have a duty to disclose anything
Speaker 1: that's connected with it. It does not raise the kind
Speaker 1: of dangers that a state's secret would. Now, let's turn
Speaker 1: from the CIA to the FBI. In a case originally
Speaker 1: brought by three Muslim men who claimed they were targets
Speaker 1: of an FBI dragnet surveillance program only because of their
Speaker 1: religion like a zoobay there's this case arises after nine
Speaker 1: eleven and some of the credible overreaction that our government
Speaker 1: took in terms of law enforcements in this case, they
Speaker 1: infiltrated Muslim community, including taping conversations in a mosque simply
Speaker 1: because the FBI wanted to get tabs on what was
Speaker 1: going on to make sure there was no terantsort as
Speaker 1: a proactive measure. In this case, there were about eleven
Speaker 1: different claims that were brought Fourth Amendment, religion claims and
Speaker 1: so forth, and in this particular case, the Ninth Circuit
Speaker 1: overturned the District Court and held that some of the
Speaker 1: claims could go forward. And as in Zooby, there one
Speaker 1: of the claims that the government had used as a
Speaker 1: defense was state secrets that they didn't want to disclose, methodology, names,
Speaker 1: and the means by which this illegal surveillance took place.
Speaker 1: And Ninth Circuit limited the state secrets as they did
Speaker 1: in zoo Beta, holding that the district court had to
Speaker 1: make a narrow decision about what was actually a state
Speaker 1: secret and what was legal and what was not. And
Speaker 1: the Ninth Circuit, in doing this, adopted a view that
Speaker 1: the FISA Act, the Foreign Intelligence Surveillance Act, actually modified
Speaker 1: this common law state secrets privilege and narrowed it so
Speaker 1: that the result would not be dismissal of the case,
Speaker 1: but rather just in camera inspection by the lower court
Speaker 1: to determine what in fact had to be excised. So
Speaker 1: this is the Ninth Circuits suggesting that the state secrets
Speaker 1: privilege goes too far. Considering this and Zoo beta is
Speaker 1: the Court taking an interest in state secrets? The Court
Speaker 1: is clearly taking an interest in state secrets that it
Speaker 1: has not returned to state secrets really since the Reynolds
Speaker 1: case during the Cold War. And they may use these
Speaker 1: two cases together to suggest the exact contours of the doctrine.
Speaker 1: They don't have to use many other technical issues involved
Speaker 1: in the case, but the clear import the least at
Speaker 1: first glance, would be that the Court wants to say,
Speaker 1: this is a common law privilege, how far does it extend?
Speaker 1: How should it be applied attorney to immigration? The Supreme
Speaker 1: Court is going to consider whether federal courts can review
Speaker 1: decisions by immigration officials, and a question that both parties
Speaker 1: of the appeal asked the justices to take up. But
Speaker 1: lower courts are split. So this is a case on
Speaker 1: the first glance has to do with just trying to
Speaker 1: reconcile a a split in the circuits, but it does
Speaker 1: have to do also with control of of administrative agencies.
Speaker 1: Here the Bureau of Immigration Appeals and the Court in
Speaker 1: a variety of cases, is suggesting that it is concerned
Speaker 1: by the unreviewable discretion and power that administrative agencies wield.
Speaker 1: So it might be that the Court is taking this
Speaker 1: case just to vet the question about how much we
Speaker 1: want to re statutes to allow them to preclude judicial review.
Speaker 1: In this case, Um, it's actually a very narrow case.
Speaker 1: They had to do what they discretionary right to ask
Speaker 1: for discretionary relief from the agency to stay in this country,
Speaker 1: even though because of the fact that the individual here
Speaker 1: has a job and there's a what end you can
Speaker 1: if you have a good job, you can ask for
Speaker 1: discretionary relief, and the agency and the two to one
Speaker 1: vote had turned him down because he had either negligently
Speaker 1: or purposefully in the past check off a box that
Speaker 1: he was UM a U. S citizen when he was
Speaker 1: applying for a driver's license, and they used that reason
Speaker 1: to say you can't apply for discretionary relief. And the
Speaker 1: courts said that they read the the the statute to
Speaker 1: preclude review over facts, allowing petitions for discretionary relief, but
Speaker 1: not for laws and any kind of legal challenge. So
Speaker 1: it's a very narrow case. In terms of whether you
Speaker 1: can have factual review. But it does go then sort
Speaker 1: of immunize the agency from any kind of judicial review,
Speaker 1: at least with respect to factual determinations. And so again
Speaker 1: the court may take it just to clean up and
Speaker 1: make sure that the courts are all sort of uniform
Speaker 1: and interpreting this right to have a discretionary appeal, or
Speaker 1: they may also be looking at this because they are
Speaker 1: reluctant to allow a preclusion and review provision to um
Speaker 1: immunize a agency from any kind of judicial oversight. Let's
Speaker 1: turn to another case involving agencies and medicare reimbarrassment. This
Speaker 1: involves the controversial Chevron doctrine, which basically says that courts
Speaker 1: have to defer to government agencies when a law's language
Speaker 1: is ambiguous. So in some ways the American hospital cases
Speaker 1: are very um detailed. Question about medicare reimbursement at different rates,
Speaker 1: and the question is can the agency um change the
Speaker 1: rate of reimbursements that it had previously recognized And but
Speaker 1: the interesting issue that comes up is that the agency's
Speaker 1: power to change the rates of reimbursement um stem from
Speaker 1: language in the statute that allows them to calculate and
Speaker 1: adjust reimbursements as they find necessary. And that's what the
Speaker 1: agency did. But it's very broad language adjustment power. And
Speaker 1: can this adjustment power be used by the agency to
Speaker 1: change the methodology with which they had imburst hospitals for
Speaker 1: drug purchases in the past. So the Chevron doctrine is
Speaker 1: implicated because if you defer to all reasonable agency constructions
Speaker 1: of the term of open ended terms like adjustment, in essence,
Speaker 1: you're giving agencies incredible power. So this case may be
Speaker 1: used as a reason to once again limit deference to
Speaker 1: administrative agencies interpretations of statutes when they are so open ended,
Speaker 1: and we could give rise to expanded agency power. So
Speaker 1: just like a power to if the term in the
Speaker 1: statute is power to modify or power to adjust, Chevron
Speaker 1: jefference used in that way leads to a great expanse,
Speaker 1: can lead to a great expanse of agency power. And
Speaker 1: so the court might limit Chevron in some other the
Speaker 1: means or as with you know, as justice course that
Speaker 1: should say he wants to get rid of all of
Speaker 1: it all together. How many of the justices have expressed
Speaker 1: a desire just to get rid of the Chevron deference well,
Speaker 1: what's what's fascinating about We have no idea about Justice Barrett,
Speaker 1: by the way, but what's fascinating about Justice course, Justice
Speaker 1: Kavanaugh is they believe in expanded presidential power, even if
Speaker 1: it's never been recognized in the past. But they believe
Speaker 1: in whigdling you down power of the very agencies below
Speaker 1: the president um and so we Justice so Leto would
Speaker 1: probably join in with him, maybe Justice Thomas as well,
Speaker 1: And so it might turn on what Justice Barrett thinks.
Speaker 1: And she really has not had the opportunity to weigh in.
Speaker 1: In terms of the determinants of Chevron doctrine, I would
Speaker 1: expect that this is not going to be the case
Speaker 1: where they will dismantled Chevron altogether. That I could be wrong,
Speaker 1: but rather it does cry out for a limitation that
Speaker 1: many have argued for before, suggesting that when an agency
Speaker 1: can interpret a provision so as to expand its power,
Speaker 1: that's when the reasonableness deference should be discarded, because we
Speaker 1: need a check on an agency to make sure that
Speaker 1: they don't aggradize their own power at the expense of
Speaker 1: the regulated public. Thanks so much, how for giving us
Speaker 1: that introduction to next term at the Supreme Court. That's
Speaker 1: Professor Harold Crent of the Chicago Camp College of Law
Speaker 1: coming up next. The Cleveland Indians are changing their name.
Speaker 1: But what about the other team named the Cleveland Guardians.
Speaker 1: This is Bloomberg. The DC Court of Appeals has ordered
Speaker 1: the release of a man accused of taking part in
Speaker 1: a pepper spray assault on police during the January six
Speaker 1: Capital Riot, a reversal of the order of the district court.
Speaker 1: Judge joining me is former federal prosecutor Robert Mints, a
Speaker 1: partner Ma Carter in English. First of all, is it
Speaker 1: unusual for an appeals court to be reviewing decisions by
Speaker 1: district court judges about whether to release defendants on bail.
Speaker 1: It really is unusual for courts of appeal to be
Speaker 1: taking a look at those decisions, because they're typically left
Speaker 1: up to the trial judge. The trial judge is the
Speaker 1: one who has the most information and here's the arguments
Speaker 1: from counsel, and usually makes that decision based upon two factors,
Speaker 1: whether the individuals a danger to themselves or a danger
Speaker 1: to others. And if the court makes a finding that
Speaker 1: either one of those facts exists, the court will detain
Speaker 1: an individual pre trial and they will have to stay
Speaker 1: in custody until their trial begins. So now, the appeals
Speaker 1: Court on Monday ordered the release of George Tanio's He
Speaker 1: was accused of macing a police officer at the January
Speaker 1: six Capital riot and attacking officer Brian sick Nick, who
Speaker 1: died after the attack. So why did the appeals court
Speaker 1: decide that he should be released when the judge decided
Speaker 1: he should be detained in this case? The Court of
Speaker 1: Appeals took a look at the lower court ruling and
Speaker 1: decided that the judge had aired in detaining this defendant
Speaker 1: pre trial. The Court of Appeals looked at the individual's
Speaker 1: past record and saw that he had no past felony convictions,
Speaker 1: he had no ties to any extremist organizations, and no
Speaker 1: post januarystics criminal behavior that would otherwise show that he
Speaker 1: posed the danger to the community. Another factor that has
Speaker 1: weighed in on these decisions is whether or not there's
Speaker 1: evidence of premeditation. So in certain cases where prosecutors have
Speaker 1: been able to show that the defendants planned to commit
Speaker 1: violent acts, that they brought pepper spray or other weapons
Speaker 1: to the January six riot and intended to use him
Speaker 1: on police, officers. Some of those defendants have also been
Speaker 1: detained pre trial as evidence that they pose a danger
Speaker 1: to the community and if released, would continue to pose
Speaker 1: a danger to the community. What's interesting is that Tanios
Speaker 1: was seen in a video with Julian Cater, according to
Speaker 1: an FBI FI Davit quote, working to assault law enforcement
Speaker 1: officers with an unknown chemical substance by spraying officers directly
Speaker 1: in the face and eyes. Yet a panel of this
Speaker 1: same appeals court, at the DC Circuit Court of Appeals
Speaker 1: affirmed a judge's order keeping Cater in custody. How do
Speaker 1: you reconcile those two Well, I think it shows how
Speaker 1: difficult these decisions are and that they are made on
Speaker 1: a case by case basis. Here you can have a
Speaker 1: situation where you have different panels of the Court of
Speaker 1: Appeals looking at the same case and coming up with
Speaker 1: different decisions. One of the reasons you have these disparate
Speaker 1: rulings on facts that may seem somewhat similar goes to
Speaker 1: the fact that this was strict an unprecedented circumstance, the
Speaker 1: January six riots, or something that judges have really never
Speaker 1: dealt with before, and they're weighing the threat that these
Speaker 1: individuals may pose to the community against their individual rights.
Speaker 1: And one of the most difficult questions that are faced
Speaker 1: by judges in making this decision is whether or not
Speaker 1: these defendants are likely to repeat any of the conduct
Speaker 1: that occurred on January six. Some judges have looked at
Speaker 1: the conduct of the defendants and decided they pose a
Speaker 1: continuing danger to the community. Other judges will have looked
Speaker 1: at the very same fact and decided that the circumstances
Speaker 1: of January six were so unique that they will not
Speaker 1: pose a danger to repeat that conduct, and therefore should
Speaker 1: not be held pre trial. The d C Circuit Court
Speaker 1: of Appeals in a July opinion written by Judge Robert Wilkins,
Speaker 1: that opinion has become the sort of framework for decisions
Speaker 1: on free trial detention, and Wilkins said that everyone who
Speaker 1: entered the capital on January six did not necessarily pose
Speaker 1: the same risk of danger, and the preventive detention statute
Speaker 1: should apply to the January six defendants the same as
Speaker 1: it applies to everyone else. So is he saying that,
Speaker 1: you know, some people who committed violence that day can
Speaker 1: get out. I think it does. I think with the
Speaker 1: judge is saying that there are no automatic rule that
Speaker 1: would require someone to be detained pre trial or not.
Speaker 1: The judge in this case looked at one individual and
Speaker 1: said it was not obviously wrong to conclude that statements
Speaker 1: as a whole posed danger to the community. In this
Speaker 1: particular case, Judge Wilkins was talking about a defendant who
Speaker 1: had to pass history of expressing biases against African Americans
Speaker 1: and Jews, and the judge viewed that this violent rhetoric,
Speaker 1: in connection with the events of January six, made him
Speaker 1: unsuitable for pre trial release. It seems that prosecutors are
Speaker 1: not asking for detention of all the suspects. You are
Speaker 1: former federal prosecutor, what kind of a wighing process do
Speaker 1: you go through when you're deciding whether or not you
Speaker 1: want to hold someone in prison pending trial. That's a
Speaker 1: great question, because it's a very difficult assessment to make. Obviously,
Speaker 1: denying somebody their freedom even before they get their day
Speaker 1: in court is a very serious issue, and typically individuals
Speaker 1: are released on bond so that they can prepare for trial,
Speaker 1: so they can meet with their counsel, and in fact,
Speaker 1: the situation where they have not yet been found guilty
Speaker 1: of committing any offense, and so it stands to reason
Speaker 1: that they should not be sitting in prison before their
Speaker 1: trial even starts. But some cases are unique, and some
Speaker 1: cases create situations where an individual is a risk to
Speaker 1: the community, where there's a danger that the person could
Speaker 1: be released and perhaps commit another violent act, and those
Speaker 1: are the circumstances that prosecutors ask for pre trial detention
Speaker 1: in order to protect the community. But the facts there
Speaker 1: have to be specific to the individual defendant, and prosecutors
Speaker 1: have the burden of establishing that this defendant is a
Speaker 1: potential danger to the community in order to ask for
Speaker 1: pre trial attention. So we haven't seen any charges that
Speaker 1: I know of of sedition or a treason. Why do
Speaker 1: you think they're not charging that, Well, there was talk
Speaker 1: about charges of sedition right after the January Sticks riot. Tradition,
Speaker 1: as it generally understood, means inciting revolts against the government,
Speaker 1: and there was talk specifically about a group within the
Speaker 1: Department of Justice evaluating whether sedition charges would be brought
Speaker 1: against the Riders, And there was even an interview by
Speaker 1: the then acting U S Attorney Michael Sherwin for the
Speaker 1: District of Columbia, who said that prosecutors were mulling seditious
Speaker 1: conspiracy charges against some of the riders, and he even
Speaker 1: went so far as to say to you that he
Speaker 1: believed the fact do support those charges, and he thinks
Speaker 1: that those charge I just will ultimately be be brought.
Speaker 1: But as you pointed out, those charges have not been brought,
Speaker 1: and nor have charges of treason been brought. Another charge
Speaker 1: that is very difficult to prove, and the reason for
Speaker 1: that is basically that these charges have rarely been brought.
Speaker 1: There've been only ten cases of treason in the history
Speaker 1: of the United States. And tradition is also a difficult
Speaker 1: charge to bring, and it is something that has rarely
Speaker 1: been successful when it has been charged. There was a
Speaker 1: recent case in which individuals in Michigan were charged a
Speaker 1: militia group that brought in uprising against the government. But
Speaker 1: even in that case, the judges throughout this sedition conspiracy charges,
Speaker 1: saying that the hateful diet tribes used by the defendants
Speaker 1: were protected by the First Amendment. So the problem with
Speaker 1: the charge of tradition is that it brings into the
Speaker 1: prosecution the debate as to whether or not the defendants
Speaker 1: are truly urging a revolt against the government, or are
Speaker 1: they engaging in some form of protected political speech. That's
Speaker 1: something that makes the case much more difficult for prosecutors.
Speaker 1: But I think that's why we're seeing the obstruction charges
Speaker 1: that are being charged here, rather than prosecutors charging sedition
Speaker 1: or treason. So, Bob, there have been many prosecutors that
Speaker 1: have been accused of overcharging so here. Why not just
Speaker 1: charge sedition along with lesser charges and see if you
Speaker 1: can prove it or not. Well, sometimes you do see
Speaker 1: prosecutors throwing a number of charges into a case and
Speaker 1: then ultimately letting the jury decide if the more serious
Speaker 1: charges apply. But it does also open the door to
Speaker 1: other defenses, and I think that's what prosecutors are worrying about.
Speaker 1: There is a potential as a prosecutor when you bring charges,
Speaker 1: if it's perceived by the jury that you're overcharging the case,
Speaker 1: that you're trying to bring more serious charges than the
Speaker 1: evidence will sustain, that that can sometimes backs by and
Speaker 1: ultimately result in a jury rejecting your case entirely. And
Speaker 1: that's why I think prosecutors have backed away from the
Speaker 1: addition charges. They think that it opens the door into
Speaker 1: questions about with the intent of these defendants, where they're
Speaker 1: really trying to overthrow the government, or whether they're simply
Speaker 1: exercising their political free speech, and they want to avoid
Speaker 1: those discussions and focus instead on their conduct rather than
Speaker 1: their speech. So prosecutors have charge obstruction of an official
Speaker 1: proceeding and at least two five defendants according to the
Speaker 1: Washington Post. What does that signal to you that that's
Speaker 1: the charge that they're going with. Well, I think prosecutors
Speaker 1: are taking the safer route. They do not want to
Speaker 1: see a lot of acquittals in these cases, should these
Speaker 1: cases ultimately proceed to trial, and so they're focusing on
Speaker 1: the conduct of the defendants rather than getting involved in
Speaker 1: a lot of the speech related charges. Here, they are
Speaker 1: looking at what the individual defendants did, how they stormed
Speaker 1: the Capitol, when they committed violent acts, and ultimately linking
Speaker 1: to that obstructing the official proceeding, which in this case
Speaker 1: was the Joint House and sended session on January sticks
Speaker 1: certifying the electoral College vote. And in this way they
Speaker 1: can focus the prosecution on the individual acts by each
Speaker 1: of those defendants and argue that ultimately, individually and collectively
Speaker 1: it led to an obstructing of that proceeding, since lawmakers
Speaker 1: had to flee the chambers as the vote could not
Speaker 1: continue as a result of the writer's actions. A federal
Speaker 1: judge has recently warned that that charge could be unconstitutionally vague.
Speaker 1: Explain what his concerns are. What the judge was talking
Speaker 1: about is the fact that the government could face the
Speaker 1: constitutional vagueness problem if it cannot articulate to the court
Speaker 1: or put individuals clearly unnoticed. How corruptly obstructing or influencing
Speaker 1: Congress differs from ordinary trespass, creating, or disorderly conduct in
Speaker 1: the capital. It really comes down to the question of
Speaker 1: what corrupt obstruction means and whether or not that is
Speaker 1: something that could be viewed as an overcharge and something
Speaker 1: that really is nothing different than a disorderly person's defense.
Speaker 1: The statute of prosecutors are using here is an expansion
Speaker 1: of the obstruction of justice statute that was adopted by
Speaker 1: Congress in two thousand and two as a result of
Speaker 1: Starbanes Oxley, and what it does is it adds language
Speaker 1: that says whoever corruptly obstructs, influences, or impedes any official
Speaker 1: proceding is guilty of a criminal offense. But some defense
Speaker 1: lawyers have questioned whether it's this expansion really goes too far,
Speaker 1: whether Congress intended to only apply to financial fraud or
Speaker 1: to traditional obstruction of justice crimes took as prosecutors are
Speaker 1: charging here. What the judge is essentially concerned about here
Speaker 1: is that these files may not take place for a
Speaker 1: couple of years at least, and if it ultimately turns
Speaker 1: out that the charge is constitutionally deficient, that this will
Speaker 1: create a huge problem, potentially even a double jeopardy problem
Speaker 1: for prosecutors. So the judge is really doing prosecutors a
Speaker 1: favor by raising this issue now and allowing prosecutors to
Speaker 1: make an argument that the statute is not unconstitutionally vague.
Speaker 1: The one downside for prosecutors is that by raising this
Speaker 1: constitutional issue now, it throws a bit of a monkey
Speaker 1: rank into plea discussions. Looking at this case with the
Speaker 1: video evidence they have, and they have evidence after the fact,
Speaker 1: does it seem like these are going to be easy
Speaker 1: cases to prosecute? Well, these cases do have a lot
Speaker 1: of videotaped evidence, and all of the defendants who are
Speaker 1: charging these cases appear on some form of video, so
Speaker 1: their conduct is really irrefut utible. What they did, what
Speaker 1: they were doing, what they said. A lot of that
Speaker 1: has been picked up on microphones, and so there's a
Speaker 1: lot of evidence that prosecutors have to work with here,
Speaker 1: and I do think ultimately we're gonna see a lot
Speaker 1: of these cases resolved in a guilty play rather than
Speaker 1: going to trial because of that overwhelming evidence. But again,
Speaker 1: prosecutors have to be careful not to overcharge these cases,
Speaker 1: and at the same time, they also have to be
Speaker 1: careful not to treat different defendants with similar charges against
Speaker 1: them differently. So there has to be some kind of
Speaker 1: consistency and uniformity to how prosecutors ultimately treat these defendants
Speaker 1: who are in similar situations. At the end of the day,
Speaker 1: each of these defendants will be treated individually based upon
Speaker 1: their individual conduct, and ultimately prosecutors have to ensure that
Speaker 1: they are treated fairly and in an even handed way
Speaker 1: that we don't have sentences for some defendants that wind
Speaker 1: up being much harsher than other defendants who did essentially
Speaker 1: the same criminal conduct. Thanks Bob. That's mcarter in English.
Speaker 1: Coming up next, the next Solicitor General. This is Bloomberg,