WEBVTT - Voting Curbs Show Supreme Court's Influence 0:00:03.200 --> 0:00:07.960 This is Bloomberg Law with June Bresso from Bloomberg Radio. 0:00:09.119 --> 0:00:12.720 Texas has poised to join Georgia as a Republican controls state, 0:00:12.880 --> 0:00:17.040 enacting sweeping changes and voting laws that voting rights advocates 0:00:17.040 --> 0:00:21.040 say amount to blatant voter suppression. Here are Texas Democratic 0:00:21.079 --> 0:00:25.919 Congressman Joaquin Castro and Republican Lieutenant Governor Dan Patrick. The 0:00:25.960 --> 0:00:29.480 Republican Party in Texas is trying to bring back Jim 0:00:29.560 --> 0:00:33.959 Crow style voter suppression to this state. And you suggest 0:00:34.000 --> 0:00:36.479 that we're trying to suppress the vote, you're, in essence 0:00:36.720 --> 0:00:40.000 between the lines calling us racist, and that will not stand. 0:00:40.640 --> 0:00:44.640 Republicans can thank the Supreme Court for its Shelby County 0:00:44.680 --> 0:00:47.519 decision that created a glide path for many of the 0:00:47.560 --> 0:00:50.879 election changes they're pushing through this year. Joining me as 0:00:50.920 --> 0:00:54.040 elections law expert Rick Hassan, a professor at the University 0:00:54.040 --> 0:00:57.880 of California Irvine School of Law, there is a cascade 0:00:57.880 --> 0:01:02.840 of voting changes in republic Can controlled states. Which states 0:01:02.920 --> 0:01:08.039 bill stands out as the most restrictive and why I 0:01:08.040 --> 0:01:10.880 think it's a moving target. We're still waiting to see 0:01:10.920 --> 0:01:13.679 what legislation is going to pass in Texas and Texas 0:01:13.720 --> 0:01:16.800 had some pretty worrisome provisions that came out of the 0:01:16.840 --> 0:01:19.600 bill on the Senate side, somewhat different provisions on the 0:01:19.600 --> 0:01:21.640 House side, And we'll see what emerges before the end 0:01:21.680 --> 0:01:24.600 of the session. But you saw in Florida, in Georgia, 0:01:24.680 --> 0:01:27.360 in Arizona, in each of these states laws that make 0:01:27.400 --> 0:01:29.959 it somewhat harder for people to register and to vote. 0:01:30.120 --> 0:01:34.400 In addition, and what I think is probably more concerning 0:01:34.440 --> 0:01:37.360 than even things like saying you can't give voters water 0:01:37.440 --> 0:01:40.360 while they're waiting in line to vote, our provisions that 0:01:40.680 --> 0:01:44.560 might allow partisans to manipulate how the votes are actually 0:01:44.600 --> 0:01:48.120 going to be counted. So in Georgia, the secretary of State, 0:01:48.200 --> 0:01:51.000 who you may remember, Brad Raefinsburger, stood up to Trump 0:01:51.080 --> 0:01:54.480 and would not find or manufacture additional votes to try 0:01:54.480 --> 0:01:56.760 to flip the outcome to the secretary of state position 0:01:56.800 --> 0:01:59.200 has been taken out of a role on the state 0:01:59.200 --> 0:02:02.000 election board to be replaced by someone who's going to 0:02:02.000 --> 0:02:05.320 be appointed by the legislature. And this body now has 0:02:05.360 --> 0:02:08.359 the power to take over up to four county election 0:02:08.440 --> 0:02:10.440 boards at a time, and so it could be that 0:02:10.520 --> 0:02:14.160 we'll see the state election board looking to take over 0:02:14.240 --> 0:02:17.280 Democratic counties and mess with how the election is being 0:02:17.280 --> 0:02:20.040 conducted in those counties. So this is kind of a 0:02:20.120 --> 0:02:23.720 new problem that we haven't seen before, not just about 0:02:24.040 --> 0:02:27.639 making it harder to vote, but potentially subverting the outcome 0:02:27.680 --> 0:02:31.919 of the election itself. Could these build backfire and restrict 0:02:31.960 --> 0:02:36.040 Republican voters as well? Oh, I think there's no doubt 0:02:36.160 --> 0:02:39.160 that this is a real danger. And in fact, in Florida, 0:02:39.320 --> 0:02:43.680 which has very successfully used mail and balloting for many years, 0:02:43.800 --> 0:02:46.760 some Republican legislators are worried that's going to make it 0:02:46.800 --> 0:02:50.160 harder for reliable Republican voters to cast a ballot, even 0:02:50.240 --> 0:02:52.920 to the point where they were thinking of exempting the 0:02:53.000 --> 0:02:55.679 rules for military and elderly voters who are more likely 0:02:55.720 --> 0:02:57.919 to vote for Republicans. That didn't end up going that route, 0:02:57.919 --> 0:03:00.360 but it does show that there is concern about back fire. 0:03:00.400 --> 0:03:02.040 And so one is that it's going to make it 0:03:02.080 --> 0:03:05.440 harder for reliable Republicans to turn out to vote. And 0:03:05.480 --> 0:03:08.240 we saw the turnout was way up, for example, in Texas, 0:03:08.400 --> 0:03:12.160 and that helped Republicans, So higher turnout doesn't necessarily help Democrats. 0:03:12.160 --> 0:03:14.200 But the other thing that these laws do is that 0:03:14.240 --> 0:03:17.960 they energize the Democratic base and the Democratic Party seeing 0:03:18.280 --> 0:03:21.919 this as an effort at suppressing the vote, and that 0:03:21.960 --> 0:03:26.360 can actually spur a backlash which can actually increase turnout. 0:03:26.440 --> 0:03:29.959 So it's not clear what the actual effect is going 0:03:30.000 --> 0:03:33.200 to be on election results, but I think that shouldn't 0:03:33.240 --> 0:03:35.160 be where the main focus is. The main focus should 0:03:35.160 --> 0:03:37.200 be why does the state get to make it harder 0:03:37.200 --> 0:03:39.440 for people to register or to vote without having a 0:03:39.440 --> 0:03:41.720 good reason to do so. And the reason here seems 0:03:41.720 --> 0:03:45.160 to be simply to try to give one party partisan advantage. 0:03:45.560 --> 0:03:48.960 As far as the parts of these bills that go 0:03:49.160 --> 0:03:53.400 further than talking about how a person votes in that state, 0:03:53.760 --> 0:03:57.920 will those survive court challenges? So how things are going 0:03:57.960 --> 0:04:01.160 to go into court is uncertain. There are really three 0:04:01.240 --> 0:04:05.760 main lines of attack. One is an attack under Section 0:04:05.800 --> 0:04:07.960 two of the Voting Rights Act, the second is an 0:04:08.000 --> 0:04:12.200 attack under various constitutional provisions, including the Fourteen Amendments Equal 0:04:12.200 --> 0:04:15.600 Protection Clause, and the third are attacks under state constitutions. 0:04:15.720 --> 0:04:17.960 So let me talk about each of those separately. How 0:04:18.080 --> 0:04:20.880 much does Section two of the Voting Rights Act protect 0:04:21.279 --> 0:04:23.560 the laws that make it harder for fuel to register 0:04:23.600 --> 0:04:26.240 and vote? That is an open question that is before 0:04:26.279 --> 0:04:28.880 the United States Supreme Court right now in a case 0:04:28.920 --> 0:04:31.880 called Bernovich. This is a case coming out of Arizona 0:04:32.279 --> 0:04:34.960 where the Democratic Party challenged some rules that they said 0:04:35.040 --> 0:04:37.920 made it harder for voters to be able to cast 0:04:37.960 --> 0:04:41.039 their ballots, and the Supreme Court is going to for 0:04:41.080 --> 0:04:44.200 the first time wigh in on how section to the 0:04:44.279 --> 0:04:47.160 Voting Rights Act, which provides that minority voters should have 0:04:47.200 --> 0:04:50.120 the same opportunity as others to participate the political process 0:04:50.279 --> 0:04:53.120 and to let representatives of their choice. How Section two 0:04:53.160 --> 0:04:55.200 is going to apply in this context. We know how 0:04:55.279 --> 0:04:57.880 it applies in the contracts of redistricting. The courts decided 0:04:57.960 --> 0:05:01.000 lots of cases of that question. But the major issue 0:05:01.200 --> 0:05:04.039 in the Burnerage case that should be decided by the 0:05:04.120 --> 0:05:06.120 end of June, and that will tell us how well 0:05:06.160 --> 0:05:09.240 these new challenges will go under Section two. Terms of 0:05:09.279 --> 0:05:12.440 constitutional challenges under the Protection Clause and other provisions of 0:05:12.440 --> 0:05:15.640 the U. S Constitution. I think plaintiffs face an uphill 0:05:15.720 --> 0:05:19.000 battle because over the years the Supreme Court and lower 0:05:19.000 --> 0:05:22.039 courts have not been as accepting of these kinds of 0:05:22.040 --> 0:05:25.480 claims of constitutional violations. I think the really egregious laws 0:05:25.520 --> 0:05:29.080 could fall under US constitutional challenges, but it's going to 0:05:29.160 --> 0:05:31.560 be a tough road to challenge laws there, and it 0:05:31.839 --> 0:05:34.080 really shows you what's the loss of Section five of 0:05:34.120 --> 0:05:36.880 the Voting Rights Act, which the Supreme Court eviscerated in 0:05:36.920 --> 0:05:40.160 the two thousand thirteen Shelby County Versus. Holder case really did. 0:05:40.640 --> 0:05:45.080 And then finally, challenges in state courts raising state constitutional claims. 0:05:45.120 --> 0:05:48.440 These could potentially be successful, especially in states like Pennsylvania 0:05:48.520 --> 0:05:52.080 and North Carolina, which have Democratic majority state Supreme courts 0:05:52.160 --> 0:05:55.320 which have been shown to be skeptical of some efforts 0:05:55.400 --> 0:05:59.560 to manipulate election results through restrictive voting laws. But there's 0:05:59.600 --> 0:06:02.839 a pen question about whether or not state courts have 0:06:03.160 --> 0:06:05.840 the power to reign in state legislatures when it comes 0:06:05.839 --> 0:06:08.159 to the rules for federal elections. That's an issue the 0:06:08.160 --> 0:06:11.719 Supreme Court duct in the election season, but will probably 0:06:11.839 --> 0:06:15.080 end up back at the Court. So, Texas and Georgia 0:06:15.160 --> 0:06:19.520 were states that were subject to the Voting Rights Acts 0:06:19.800 --> 0:06:24.040 requirement that jurisdictions get pre clearance from the Justice Department 0:06:24.120 --> 0:06:27.640 or a federal court before changing their voting rules. You 0:06:27.800 --> 0:06:31.279 reference the Supreme Court's decision in the Shelby County case. 0:06:31.640 --> 0:06:35.440 Just tell us briefly what that case did so. As 0:06:35.480 --> 0:06:37.680 you mentioned, there were a number of states that had 0:06:37.680 --> 0:06:40.080 a history of racial discrimination and voting that had to 0:06:40.080 --> 0:06:42.800 get federal approval before making changes to their voting rules, 0:06:42.800 --> 0:06:45.800 and they had to demonstrate that the changes would not 0:06:45.880 --> 0:06:50.240 make protected binary voters worse off. In nineteen sixty six, 0:06:50.320 --> 0:06:53.760 the Supreme Court upheld this preclearance provision as what the 0:06:53.760 --> 0:06:56.240 court called the strong medicine. It's tough to tell a 0:06:56.320 --> 0:06:58.280 state that they've got to get federal approval before they 0:06:58.279 --> 0:07:00.440 could put their laws in place, but the said it 0:07:00.480 --> 0:07:03.840 was justified by this long history of discrimination. By two 0:07:03.880 --> 0:07:07.000 thousand thirteen, however, the Supreme Court said that the law 0:07:07.160 --> 0:07:10.480 was no longer justified because it was based upon data 0:07:10.600 --> 0:07:15.040 about disparities in turnout and voting from the nineteen sixties 0:07:15.080 --> 0:07:18.280 and from nine seventy and so the Court didn't strike 0:07:18.320 --> 0:07:22.600 down the preclearance provision itself, but instead struck down the 0:07:22.640 --> 0:07:25.480 coverage formula of the formula that dictated which states were 0:07:25.480 --> 0:07:28.640 going to be subjects to these rules. And what's happened 0:07:28.720 --> 0:07:33.080 since then is that Congress has been considering different coverage formulas, 0:07:33.080 --> 0:07:35.760 and right now there's a bill pending in the House. 0:07:35.960 --> 0:07:38.720 It's called Hr. Four. It's the John Lewis Voting Rights Act, 0:07:38.720 --> 0:07:42.080 and it would impose a new requirement of preclearance under 0:07:42.120 --> 0:07:44.880 a new formula, with the hope that this would pass 0:07:44.960 --> 0:07:48.880 constitutional muster if it were put in place. And Joe Mansion, 0:07:48.960 --> 0:07:51.520 who is a centator from West Virginia, is the Democrat 0:07:51.600 --> 0:07:54.440 who is very important because he's kind of a fiftieth 0:07:54.480 --> 0:07:57.840 vote to try to get a voting bill through the Senate, 0:07:58.080 --> 0:08:01.320 and he has said that he would favor moving preclearance 0:08:01.360 --> 0:08:04.160 to a nationwide standard. That is, rather than single out 0:08:04.160 --> 0:08:07.200 particular state, you would have every state be subject to 0:08:07.440 --> 0:08:09.760 these kinds of rules. I think that would solve one 0:08:09.800 --> 0:08:12.440 of the issues raised in Shelby County, which is treating 0:08:12.480 --> 0:08:15.000 some states differently than others. But it does still raise 0:08:15.040 --> 0:08:17.080 the question of whether or not Congress would have the 0:08:17.080 --> 0:08:20.200 power to make states go through this kind of process. 0:08:20.200 --> 0:08:22.360 So a lot up in the air. It's not clear 0:08:22.360 --> 0:08:25.160 if legislation will pass that would try to reverse Shelby County, 0:08:25.400 --> 0:08:27.960 and it's not clear that if that legislation passed that 0:08:28.040 --> 0:08:31.120 the Supreme Court would be willing to uphold it. How 0:08:31.200 --> 0:08:35.000 does the fact that the Court is more conservative now 0:08:35.240 --> 0:08:39.760 six conservative members and In fact, Chief Justice John Roberts 0:08:39.760 --> 0:08:43.000 wrote the majority opinion in Shelby County. How does that 0:08:43.000 --> 0:08:46.000 play in? We do know that this court is full 0:08:46.040 --> 0:08:49.920 of conservative justices who are skeptical of race based solutions generally, 0:08:50.240 --> 0:08:54.000 so it's not clear if a renewed Section five of 0:08:54.040 --> 0:08:57.000 the Voting Rights Act would pass constitutional muster for this 0:08:57.080 --> 0:09:00.800 conservative court. But listening to the oral arguments the Bernovich case, 0:09:00.880 --> 0:09:03.720 that Section two case, it did sound like a number 0:09:03.720 --> 0:09:06.760 of the conservative justices were willing to read the Voting 0:09:06.840 --> 0:09:09.640 Rights Act as providing some protection for minority voters. There 0:09:09.679 --> 0:09:12.920 wasn't really any suggestion that this was somehow unconstitutional or 0:09:13.000 --> 0:09:15.440 needed to be reined in. So we'll see That opinion 0:09:15.559 --> 0:09:18.440 won't be out for probably another month and a half, 0:09:18.440 --> 0:09:22.080 but it's probably the most important voting rights decision that 0:09:22.120 --> 0:09:23.959 we're going to get in a number of years, and 0:09:24.240 --> 0:09:27.440 it is going to be a major indication of how 0:09:27.480 --> 0:09:30.640 conservative this court is and whether the six conservative justices 0:09:30.640 --> 0:09:33.599 on the Court really Martian lockstep or whether there is 0:09:33.640 --> 0:09:36.640 some daylight between them on questions and voting rights. Chief 0:09:36.679 --> 0:09:40.280 Justice John Roberts also, i believe, wrote the majority opinion 0:09:40.960 --> 0:09:45.920 in the Supreme Court decision that judges can't toss voting 0:09:45.960 --> 0:09:49.320 maps for being two partisan. How important was that decision? 0:09:49.760 --> 0:09:52.280 So this is the Routo decision, and that's a very 0:09:52.320 --> 0:09:56.400 important decision as we're entering into the new period of redistricting. 0:09:56.640 --> 0:09:59.680 So registering happens every ten years after the census for 0:09:59.720 --> 0:10:01.920 the only twenty two elections, we will have new lines 0:10:01.960 --> 0:10:03.960 being drawn. We just had a new apportionment where I 0:10:04.000 --> 0:10:06.600 live in California, we just lost one seat. Some other 0:10:06.640 --> 0:10:09.160 states have gained a seed or two. And after the 0:10:09.200 --> 0:10:12.880 lines are drawn, they're often challenges that the lines are 0:10:13.040 --> 0:10:16.480 unconstitutional as they violate various provisions of state law or 0:10:16.559 --> 0:10:18.960 violate the Voting Rights Act. One argument that had been 0:10:18.960 --> 0:10:22.160 floating out there for some time is that when you 0:10:22.360 --> 0:10:24.800 draw these district lines, you do so to favor one 0:10:24.840 --> 0:10:27.200 party and hurt the other party, so called partisan jerry 0:10:27.240 --> 0:10:30.480 managering that this violates the Constitution. And the issue had 0:10:30.520 --> 0:10:33.840 been uncertain for many years because Justice Kennedy, who was 0:10:33.880 --> 0:10:36.360 the key swing vote on this question, kept it open 0:10:36.440 --> 0:10:40.040 and still wanted to hear different kinds of challenges to 0:10:40.160 --> 0:10:42.880 figure out, you know, when registering goes too far as 0:10:42.920 --> 0:10:45.800 to violate the Constitution However, it's an afterco just Okay 0:10:45.920 --> 0:10:47.679 left the court. The Supreme Court in the rut O 0:10:47.760 --> 0:10:50.199 case said that federal courts are not open to hearing 0:10:50.200 --> 0:10:53.080 claims of partisan jerry mandering. To be going into the 0:10:53.160 --> 0:10:56.360 new round of registering with two major legal changes since 0:10:56.400 --> 0:10:59.920 the last round. Number one is no partisan gerry mandering 0:11:00.000 --> 0:11:02.360 claims will be viable, So that's not something that those 0:11:02.400 --> 0:11:04.839 who want to engage in parisngerymannjuring me to worry about. 0:11:04.840 --> 0:11:07.320 And number two will be the first redistricing round since 0:11:07.360 --> 0:11:10.400 the nineteen seventies in which the Justice Department will not 0:11:10.440 --> 0:11:14.280 be preclearing maps that were drawn in those jurisdictions that 0:11:14.360 --> 0:11:17.360 had a history of racial discrimination of voting. So going 0:11:17.400 --> 0:11:19.679 to be a lot of political battles. Not clear how 0:11:19.760 --> 0:11:21.920 much the courts are going to get involved. Maybe state 0:11:21.920 --> 0:11:24.040 courts will get involved more. But it's a very different 0:11:24.200 --> 0:11:27.800 atmosphere than it was in the last decade when these 0:11:27.880 --> 0:11:31.640 cases emerged after the last round of prediscing. Has there 0:11:31.640 --> 0:11:34.840 been a time in our history since the Jim Crow 0:11:35.240 --> 0:11:43.079 era where so many states were moving to restrict voting rights. Well, 0:11:43.120 --> 0:11:45.520 I think that as soon as the Supreme Court decided 0:11:45.679 --> 0:11:48.360 the Shelby County case. You saw immediate action by North 0:11:48.400 --> 0:11:52.520 Carolina and Texas to try to impose or apply strict 0:11:52.600 --> 0:11:58.080 voting rules. Uh, it's really accelerated now following the election 0:11:58.280 --> 0:12:02.480 after Donald Trum repeated false claims at the election was 0:12:02.559 --> 0:12:05.760 stolen in part as a reaction to that. A number 0:12:05.760 --> 0:12:08.880 of states have passed restrict of voting rules. They're doing 0:12:08.880 --> 0:12:11.080 so in an atmosphere where the courts are less protective 0:12:11.080 --> 0:12:13.360 of voting rights, and so I do think that voting 0:12:13.440 --> 0:12:15.079 rights are under assault now in a way that they 0:12:15.080 --> 0:12:18.199 haven't been in a number of decades. Thanks Rick. That's 0:12:18.320 --> 0:12:21.720 Rick Hassant of the University of California, Irvine School of Law. 0:12:22.640 --> 0:12:24.960 It didn't take long for the jury and the trial 0:12:24.960 --> 0:12:28.959 of former Minneapolis police officer Derek Chauvin to reach a verdict. 0:12:29.120 --> 0:12:33.200 According to juror Brandon Mitchell, we probably deliberated for four hours, 0:12:33.200 --> 0:12:36.000 and of that four hours it was it was I 0:12:36.040 --> 0:12:38.679 guess we were going over more sol the terminology, oh, 0:12:38.760 --> 0:12:42.200 that was being used to make sure that we understood 0:12:42.440 --> 0:12:45.720 exactly what was being asked. And now another jury, a 0:12:45.840 --> 0:12:48.600 federal jury, will be asked to decide what happened that 0:12:48.720 --> 0:12:51.840 day in May when Chauvin pinned George Floyd down to 0:12:51.880 --> 0:12:54.320 the ground with a knee on his neck. The Justice 0:12:54.360 --> 0:12:57.600 Department has indicted Chauvin and the three other former officers 0:12:57.640 --> 0:13:03.080 on federal civil rights charges were wilfully violating Floyd's constitutional rights. 0:13:03.760 --> 0:13:06.720 Joining me as Jonathan Smith, executive director of the Washington 0:13:06.760 --> 0:13:10.520 Lawyers Committee for Civil Rights and Urban Affairs. Derek Chauvin 0:13:10.559 --> 0:13:14.040 was convicted of murder. The three other former officers haven't 0:13:14.040 --> 0:13:18.080 even been tried yet. Aren't Federal charges usually brought after 0:13:18.240 --> 0:13:22.280 state charges fail, like in the Rodney King case, so 0:13:22.360 --> 0:13:26.080 it is unusual for the federal government to bring civil 0:13:26.160 --> 0:13:30.520 rights violations charges while the state cases still pending. The 0:13:30.559 --> 0:13:35.239 federal charge is a much broader criminal statute that addresses 0:13:35.520 --> 0:13:38.000 when someone who's acting on color state law a state 0:13:38.040 --> 0:13:40.880 official willfully violates someone civil rights. It dates back to 0:13:40.960 --> 0:13:44.000 the Civil War, literally the Reconstruction era, and it's the 0:13:44.080 --> 0:13:46.800 only sadget that the United States can use to charge 0:13:46.840 --> 0:13:50.560 in these cases. Typically, the United States will come in 0:13:50.800 --> 0:13:54.160 and bring those charges only under the circumstances in which 0:13:54.360 --> 0:13:56.720 there has been some decision by the United States that 0:13:56.800 --> 0:14:00.880 the state criminal proceeding was inadequate to serve justice, and 0:14:00.880 --> 0:14:03.320 that's in the United States Attorney's Manual, which is the 0:14:03.360 --> 0:14:06.840 directions to the United's attorney from the Attorney General about 0:14:07.120 --> 0:14:09.640 when they should charge. And so the fact that they 0:14:09.679 --> 0:14:14.160 brought charges here before the state proceedings had concluded is 0:14:14.520 --> 0:14:18.280 unusual and does reflect the seriousness which the United States 0:14:18.320 --> 0:14:21.400 is taking this particular the case. What does the prosecution 0:14:21.520 --> 0:14:24.760 have to prove here? Is it a high burden. So 0:14:24.920 --> 0:14:28.200 the federal crime to which these officers have been charged 0:14:28.680 --> 0:14:33.200 requires of the United States show that these officers willfully 0:14:33.320 --> 0:14:37.880 violated George Floyd's civil rights. And the willfulness standard is 0:14:37.920 --> 0:14:40.480 the highest standard in our criminal law. It's the same 0:14:40.520 --> 0:14:43.120 standard as you would apply for intentional murder or another 0:14:43.200 --> 0:14:45.600 intent crime. It doesn't mean that they still have to 0:14:45.600 --> 0:14:48.320 show that they intended to kill George Floyd, but they 0:14:48.360 --> 0:14:50.800 do have to show that they intended to commit the 0:14:50.880 --> 0:14:53.240 acts that they knew to be in violation of his 0:14:53.240 --> 0:14:56.320 civil rights, that they intended to restrain him illegally, that 0:14:56.400 --> 0:14:59.320 they intended to restrain him in violation of Fourth Amendment 0:14:59.360 --> 0:15:02.880 to the United Constitution and the rules around use of force. 0:15:03.320 --> 0:15:05.640 And that is a very difficult standard to make. It's 0:15:05.720 --> 0:15:08.760 much different than the kinds of crimes that were charged 0:15:08.800 --> 0:15:11.160 in the state case. I mean, the state did charge 0:15:11.160 --> 0:15:13.040 a crime which required the show even attempt, but it 0:15:13.080 --> 0:15:16.120 also charged the crime with a much lower intense standard 0:15:16.520 --> 0:15:22.040 of recklessness or negligence. And there is no crime available 0:15:22.120 --> 0:15:25.040 under the United States Code that is at a recklessness 0:15:25.200 --> 0:15:28.480 or a negligence standard. The only crime that's availably United 0:15:28.480 --> 0:15:31.640 States Code is to show this intent to commit a 0:15:31.680 --> 0:15:35.080 civil rights violation. And so it's a very difficult case 0:15:35.120 --> 0:15:37.520 to prove. The United States must feel very confident it 0:15:37.560 --> 0:15:40.240 could prove the case because they charged so rarely and 0:15:40.280 --> 0:15:44.360 only under circumstances where the evidence is extremely clear. You know, 0:15:44.440 --> 0:15:48.560 clearly the United States had begun its investigation well before 0:15:48.760 --> 0:15:51.720 the trial of Dark Children. The grand jury had been 0:15:51.760 --> 0:15:54.080 sitting for some time, the FBI had been engaged in 0:15:54.280 --> 0:15:57.120 its investigation. You know, will certainly wait and see whether 0:15:57.160 --> 0:15:59.720 there was any new evidence developed by the United States 0:15:59.720 --> 0:16:02.360 that and presented by the State. Well, let me ask 0:16:02.400 --> 0:16:06.080 your opinion. Do you think that it's fair to try 0:16:06.120 --> 0:16:11.120 a person for the same crime in two different jurisdictions 0:16:11.160 --> 0:16:14.800 just to pile on years to the prison term. I mean, 0:16:15.000 --> 0:16:18.920 is it fair our Constitution says that you cannot be 0:16:19.000 --> 0:16:21.480 exposed to double jeopardy, and that really means that you 0:16:21.560 --> 0:16:26.840 can't be charged and tried for the same conduct twice 0:16:27.200 --> 0:16:29.920 that the state gets one shot at you. Distreme Court 0:16:29.960 --> 0:16:32.400 has said that the United States and the State are 0:16:32.400 --> 0:16:37.000 different sovereigns and that the double jeopardy provision only applies 0:16:37.080 --> 0:16:40.200 to each of the sovereigns independently and has permitted the 0:16:40.280 --> 0:16:43.480 United States to bring charges for course of conduct that 0:16:43.560 --> 0:16:46.560 may have been resolved in the state court proceeding that 0:16:46.920 --> 0:16:50.200 can create an injustice, that can create an injustice by 0:16:50.400 --> 0:16:53.920 you know, punishing somebody twice and severely for the same conduct. 0:16:54.120 --> 0:16:56.880 And so in order to address that, that is why 0:16:57.280 --> 0:17:01.080 typically the United States, before will bring charges, will take 0:17:01.080 --> 0:17:04.960 into account the question of whether the state proceeding provided 0:17:05.160 --> 0:17:08.159 adequate justice for the conduct. And that is why the 0:17:08.480 --> 0:17:11.200 United States having charged before ther Choven has even been 0:17:11.200 --> 0:17:14.240 sentenced and the other officers have ever been tried, is 0:17:14.240 --> 0:17:17.280 so unusual because the United States will typically allow the 0:17:17.359 --> 0:17:20.240 state to go forward with its case first and then 0:17:20.280 --> 0:17:24.520 evaluate whether the state court proceding provided adequate justice before 0:17:24.560 --> 0:17:27.080 it will bring those charges. And so this is unusual. 0:17:27.440 --> 0:17:30.120 The United States who have moved in before it can 0:17:30.280 --> 0:17:34.000 even answer that question. Really is sending a signal that 0:17:33.960 --> 0:17:36.080 the United States is going to be more engaged around 0:17:36.119 --> 0:17:39.600 these cases and that it's going to use those statutes 0:17:39.640 --> 0:17:42.240 in a more robust way. And prior administrations may have 0:17:42.760 --> 0:17:48.720 What can the officers argue in their defense? So there 0:17:48.720 --> 0:17:51.200 are three elements to the statute that the United States 0:17:51.240 --> 0:17:54.160 has to prove. The first is that the officers erecting 0:17:54.160 --> 0:17:56.639 in their color of law, which means they're acting in 0:17:56.680 --> 0:18:00.000 an official capacity with the authority of the state. UM, 0:18:00.000 --> 0:18:01.639 it's gonna be a very little contest that they were 0:18:01.680 --> 0:18:06.080 acting as police officers at the time. UM, They'll uh 0:18:06.200 --> 0:18:08.280 the United States just to prove that it was a 0:18:08.359 --> 0:18:13.360 violation of UM. Mr Floyd's civil rights. And I think 0:18:13.400 --> 0:18:16.359 that restraining somebody to the point in which they died 0:18:16.480 --> 0:18:19.320 is going to be very difficult for the officers to 0:18:19.400 --> 0:18:24.200 argue that, UM, Mr john civil rights, we're not. Mr 0:18:24.240 --> 0:18:27.639 floyd civil rights are not violated and UM. But the 0:18:27.720 --> 0:18:30.280 third element is the one of intent. Did they set 0:18:30.280 --> 0:18:33.240 out to commit an act knowing that it was a 0:18:33.320 --> 0:18:37.880 violation of George floyd civil rights? That's where I think 0:18:38.040 --> 0:18:40.160 that if there's a trial in this case. That's where 0:18:40.200 --> 0:18:41.840 I think the trial was going to focus. What was 0:18:41.880 --> 0:18:44.320 in the minds of the officers at the time that 0:18:44.400 --> 0:18:47.000 they committed these act? Did they intend to commit an 0:18:47.040 --> 0:18:51.119 act that they knew to be in violation of the 0:18:51.200 --> 0:18:54.879 United States Constitute? So how will prosecutors prove intent if 0:18:54.920 --> 0:18:59.000 the officers don't take the stand. Well, you saw a 0:18:59.040 --> 0:19:02.960 lot of that evidence come out in the trial. Um, 0:19:03.040 --> 0:19:07.240 you can show intent through all kinds of circumstantial evidence. 0:19:07.240 --> 0:19:09.639 What what was the officers training, What did they know 0:19:09.680 --> 0:19:12.680 about the policy? What was their prior behavior and conduct 0:19:12.800 --> 0:19:15.639 that would indicate that they knew that their conduct was 0:19:15.720 --> 0:19:18.639 violating the civil rights? You know, was there use of 0:19:18.760 --> 0:19:22.000 force proportionate to the crime or the resistance that they 0:19:22.000 --> 0:19:25.639 were receiving from Mr Floyd at the time. There's a 0:19:25.640 --> 0:19:28.560 lot you can bring in that allow you to understand 0:19:29.040 --> 0:19:31.720 what the officers, you know, we're thinking at the time 0:19:31.840 --> 0:19:35.159 you saw this, you know, looking at the incident, you know, 0:19:35.200 --> 0:19:38.800 the severity of the crimes for which Mr. Floyd was 0:19:39.119 --> 0:19:43.560 suspected of having committed, the nature of the use of force, 0:19:43.640 --> 0:19:46.320 the persistence of the use of force in the face 0:19:46.400 --> 0:19:48.720 of what was being said to them by people in 0:19:48.720 --> 0:19:53.480 the crowd of you know, his physical condition as it deteriorated. 0:19:53.640 --> 0:19:55.399 All of that can be brought in to show that 0:19:55.440 --> 0:19:59.120 the officers knew that what they were doing UM may 0:19:59.160 --> 0:20:01.480 well have been a b relation of his right under 0:20:01.520 --> 0:20:05.720 the Constitution. You know, police officers are trained to know, 0:20:06.880 --> 0:20:09.240 are supposed to be trained in what the law is 0:20:09.320 --> 0:20:12.880 around when they can and can't use force, and they're 0:20:12.880 --> 0:20:16.880 supposed to be trained to know that that force has 0:20:16.960 --> 0:20:21.959 to be reasonable and that it can't be used in 0:20:22.040 --> 0:20:26.159 the kind of excessive, dangerous ways. And bringing in some 0:20:26.200 --> 0:20:29.000 of the same evidence that the state brought in UM 0:20:29.200 --> 0:20:32.639 will be very important to proving their intent. The Justice 0:20:32.640 --> 0:20:37.000 Department is also starting again with pattern and practice investigations, 0:20:37.200 --> 0:20:41.760 announcing civil investigations into the Minneapolis and Louisville police departments. 0:20:41.800 --> 0:20:44.720 Are they necessary? I think they're necessary and their important. 0:20:44.720 --> 0:20:46.760 When I was at the Department of Justice, I led 0:20:46.760 --> 0:20:49.600 the section that did the pattern and practice investigations for 0:20:49.640 --> 0:20:52.520 the Civil Rights Division of Law Enforcement during the Obama administration. 0:20:52.800 --> 0:20:56.240 The statute that they're enforcing, which allows the Attorney General 0:20:56.280 --> 0:20:59.040 proddress patterns and practices of the violation of the Constitution 0:20:59.160 --> 0:21:02.280 Federal law by law enforcement was enacted in the wake 0:21:02.440 --> 0:21:05.359 of the rebellions in Los Angeles after the beating of 0:21:05.600 --> 0:21:08.520 Rodney King as a way to give the federal government 0:21:08.680 --> 0:21:13.720 some ability to influence and to address unconstitutional practices by 0:21:13.760 --> 0:21:17.760 local law enforcement agencies. That statute has been enforced about 0:21:17.880 --> 0:21:22.679 seventy five times since was enacted. About twenty five of 0:21:22.680 --> 0:21:25.960 those cases were brought during the Obama administration. There was 0:21:26.040 --> 0:21:29.320 only one such investigation in case that was brought during 0:21:29.480 --> 0:21:34.040 the Trump administration. What we're seeing with the announcements in 0:21:34.080 --> 0:21:37.879 Louisville and in Minneapolis is that the Department Justice is 0:21:37.920 --> 0:21:39.919 going to be bringing more of those cases. I think 0:21:40.000 --> 0:21:42.480 that is a bell weather from an indicator that United 0:21:42.480 --> 0:21:45.440 State is going to be back pursuing these cases of 0:21:45.480 --> 0:21:49.160 regarding patterns of violations constitutions by law enforcement across the nation. 0:21:49.400 --> 0:21:51.800 One thing about those cases that is really very different 0:21:51.840 --> 0:21:54.359 than the criminal cases is they're not about trying to 0:21:54.400 --> 0:21:57.560 hold people accountable. That's not the goal. The criminal statute 0:21:57.800 --> 0:22:00.199 is designed if somebody engaged to misconduct of honey, then 0:22:00.280 --> 0:22:02.919