WEBVTT - Lawyers Who Lie 0:00:03.160 --> 0:00:07.960 This is Bloombird Law with June Brusso from Bloomberg Radio. 0:00:09.200 --> 0:00:12.440 You can see them counting the ballots more than once, two, three, four, 0:00:12.520 --> 0:00:15.640 or five times. You would have to be a moron 0:00:16.120 --> 0:00:19.360 not to realize if that's voter fraud. Remember in the 0:00:19.440 --> 0:00:25.240 months after the presidential election, when Rudy Giuliani repeatedly claimed 0:00:25.239 --> 0:00:28.840 that the election had been stolen from former President Trump 0:00:29.040 --> 0:00:32.400 and that he had evidence of widespread fraud, and he 0:00:32.520 --> 0:00:36.839 wasn't alone. Other Trump attorneys like Sydney Powell made similar 0:00:36.960 --> 0:00:41.600 baseless claims. An algorithm that probably ran all over the 0:00:41.640 --> 0:00:45.320 country to take a certain percentage of votes from President 0:00:45.320 --> 0:00:48.519 Trump and flipped them to President Biden, which we might 0:00:48.680 --> 0:00:51.839 never have uncovered had the votes for President Trump not 0:00:51.960 --> 0:00:55.560 been so overwhelming in so many of these states that 0:00:55.680 --> 0:00:59.680 it broke the algorithm that had been plugged into the system. 0:01:00.000 --> 0:01:03.360 Giuliani has been temporarily barred from practicing law in New 0:01:03.440 --> 0:01:07.360 York and is facing possible disbardment. Powell could be disbarred 0:01:07.480 --> 0:01:10.360 after a suit brought by the State bar of Texas. 0:01:11.040 --> 0:01:14.560 So why don't lawyers lies have the same First Amendment 0:01:14.600 --> 0:01:18.680 protections as lies by others? Katherine Ross a professor at 0:01:18.680 --> 0:01:22.200 George Washington University Law School, has written about this in 0:01:22.240 --> 0:01:27.240 a Bloomberg Law opinion piece. Is the public getting inured 0:01:27.319 --> 0:01:30.920 to lawyers lying after We saw a host of lawyers 0:01:30.959 --> 0:01:36.040 from Rudy Giuliani to Sydney Powell repeatedly lying about the election, 0:01:36.160 --> 0:01:40.520 and sometimes with outrageous lies that have been proven false 0:01:40.640 --> 0:01:44.400 over and over. That is a huge problem. Following and 0:01:44.520 --> 0:01:48.040 even leading up to the election cycle. A lot of 0:01:48.120 --> 0:01:51.600 lawyers lied about what was going to happen, what had 0:01:51.680 --> 0:01:55.200 happened in terms of alleging voter fraud that did not 0:01:55.480 --> 0:01:59.480 occur at any level that could have effected the election outcome, 0:01:59.520 --> 0:02:03.080 and in at almost all of the very few substantiated 0:02:03.160 --> 0:02:07.520 cases of illegal voting were done by Republicans and could 0:02:07.560 --> 0:02:10.320 not have led to an overturning of the election results. 0:02:10.400 --> 0:02:13.919 We're also still seeing it among all the election deniers 0:02:14.160 --> 0:02:17.400 who are running for public office in many of the states, 0:02:17.600 --> 0:02:21.560 and quite a few of those are lawyers, because lawyers 0:02:21.720 --> 0:02:25.520 are very active in public life. So I'm hoping that 0:02:25.600 --> 0:02:28.800 the public is not getting inured to this as just 0:02:29.200 --> 0:02:31.679 the cost of doing business. And I also think it's 0:02:31.760 --> 0:02:35.800 very important that the bar associations and the bar disciplinary 0:02:35.840 --> 0:02:39.400 committees not simply say, you know, this is what everybody 0:02:39.480 --> 0:02:41.520 is doing and there's not much we can do about it. 0:02:41.720 --> 0:02:44.280 I think they really need to step up in the 0:02:44.320 --> 0:02:50.440 face of this flagrant and often proven round of lying 0:02:50.680 --> 0:02:54.240 about public affairs. You know, you have lawyers who come 0:02:54.240 --> 0:02:58.960 outside the courthouse and proclaim their clients innocence and say 0:02:59.040 --> 0:03:01.960 there will be a quit it. And lawyers who make 0:03:02.080 --> 0:03:05.880 arguments to the court and construe the facts or the 0:03:06.000 --> 0:03:10.480 law in their client's behalf. Perhaps not quite down the 0:03:10.520 --> 0:03:14.480 straight and narrow. Where's the line? Okay, First, let's start 0:03:14.520 --> 0:03:17.800 with what a lie is defined as in the law. 0:03:18.160 --> 0:03:21.680 A lie is a false statement of fact that the 0:03:21.760 --> 0:03:25.960 speaker knows to be false and wants other people to believe. 0:03:26.360 --> 0:03:28.679 So some of what you're talking about we might think 0:03:28.720 --> 0:03:33.440 about as spimming or embellishment or opinion. I believe my 0:03:33.520 --> 0:03:36.600 client is innocent. I'm going to try to prove my 0:03:36.680 --> 0:03:40.600 client is innocent. Is not exactly the same thing as 0:03:40.640 --> 0:03:44.800 saying it is a fact that my client did not 0:03:45.000 --> 0:03:48.240 murder this person. And that's a dramatic example, but a 0:03:48.240 --> 0:03:51.760 lot of things are, you know, in a greyer zone. 0:03:52.400 --> 0:03:56.680 Lawyers in almost every state operate under some version of 0:03:56.840 --> 0:04:00.200 the A b AS model rules of professional con up 0:04:00.760 --> 0:04:04.880 and those applied to attorneys who have clients, and that 0:04:05.080 --> 0:04:10.119 requires that the lawyer not lie to the court and 0:04:10.280 --> 0:04:14.360 also not lie to the public. And that second part 0:04:14.680 --> 0:04:17.600 is really important in terms of what's going on today. 0:04:17.839 --> 0:04:21.159 And let me draw distinction here because some of our 0:04:21.640 --> 0:04:26.919 non legal listeners maybe thinking about some lawyer jokes that 0:04:27.040 --> 0:04:30.080 are you know that the profession is offended by, But 0:04:30.120 --> 0:04:32.520 there are a lot of jokes out there about lawyers 0:04:32.520 --> 0:04:36.320 who don't tell the truth or aren't the epitomy of 0:04:36.600 --> 0:04:41.120 virtue in practicing their profession. First of all, the reason 0:04:41.400 --> 0:04:45.680 those are quote unquote funny is because we do hold 0:04:45.880 --> 0:04:49.000 lawyers to a high standard, and lawyers hold themselves to 0:04:49.040 --> 0:04:52.200 a high standard. And if that weren't the image that 0:04:52.279 --> 0:04:55.719 lawyers were trying to project or trying to live up to, 0:04:56.440 --> 0:04:59.560 I don't think those jokes would have a punchline. So 0:05:00.200 --> 0:05:03.479 I hope that people won't be looking at these very 0:05:03.520 --> 0:05:06.840 prominent laws about things that really affect the heart of 0:05:06.839 --> 0:05:10.920 our democracy and say, well, lawyers always lie. No, lawyers 0:05:10.920 --> 0:05:15.200 are not allowed to lie if they're representing clients, they're 0:05:15.200 --> 0:05:17.359 not allowed to lie to the court, and they're not 0:05:17.400 --> 0:05:20.760 allowed to lie to all of us. Explain why the 0:05:20.839 --> 0:05:25.080 First Amendment doesn't fit in here? Some might ask, well, 0:05:25.480 --> 0:05:30.240 doesn't a lawyer have First Amendment projections like everyone else? Actually, 0:05:30.480 --> 0:05:33.279 I can understand why people would think that, but it 0:05:33.400 --> 0:05:37.680 isn't true. When people apply for membership in the bar, 0:05:37.800 --> 0:05:40.240 which allows you to have a license to practice law, 0:05:40.400 --> 0:05:45.840 they undertake certain responsibilities. One is that they affirm that 0:05:45.880 --> 0:05:48.960 they're going to act as officers of the court and 0:05:49.040 --> 0:05:51.960 uphold the law and the integrity of the court system, 0:05:52.279 --> 0:05:55.880 and that subjects them to the discipline that can be 0:05:55.920 --> 0:06:00.240 applied by the Bar Association, which requires that the lawyers 0:06:00.520 --> 0:06:04.080 abide by the Code of Professional Conduct. And the Bar 0:06:04.120 --> 0:06:09.080 Association is not the government. The First Amendment only binds 0:06:09.560 --> 0:06:12.440 the government where they We're talking about the lowest level 0:06:12.800 --> 0:06:16.560 employee in a local government all the way up to 0:06:17.160 --> 0:06:21.280 Congress and the President of the United States. Those are 0:06:21.360 --> 0:06:26.960 the people the entity that cannot abridge our First Amendment rights. 0:06:27.000 --> 0:06:31.160 But when lawyers accept their license and use their license professionally, 0:06:31.400 --> 0:06:34.200 which allows them to earn a living, they submit to 0:06:34.240 --> 0:06:37.039 the bar's jurisdiction and the bar can hold them to 0:06:37.080 --> 0:06:41.760 account if they violate the code that says that they 0:06:41.800 --> 0:06:44.200 cannot lie to the court and they cannot lie in 0:06:44.279 --> 0:06:48.679 public about matters in which they are representing someone. Rudy 0:06:48.720 --> 0:06:52.520 Giuliani's law license was suspended. How did that happen? That 0:06:52.680 --> 0:06:57.880 happened because he was repeatedly flagrantly lying to the public 0:06:58.520 --> 0:07:04.039 by alleging road in elections in many many states. When 0:07:04.160 --> 0:07:08.640 his factual errors were pointed out, he refused to retract, 0:07:08.800 --> 0:07:12.520 and he doubled down. Uh, and he was warned, and 0:07:12.720 --> 0:07:17.480 ultimately there was a preliminary hearing and his law license 0:07:17.600 --> 0:07:22.000 was suspended pending a complete investigation with hearings and so forth. 0:07:22.360 --> 0:07:26.640 And he challenged that in court and the judicial opinion 0:07:26.880 --> 0:07:31.760 upholding the state bars temporary decision because the suspension, not 0:07:31.880 --> 0:07:37.360 a termination of his license was absolutely devastating. They laid 0:07:37.400 --> 0:07:41.840 out for dozens of pages his lives to the public, 0:07:42.080 --> 0:07:46.040 his list to the press, and indeed his skirting the 0:07:46.120 --> 0:07:50.520 truth in courtrooms, and the January six hearings by the 0:07:50.960 --> 0:07:54.480 House Select Committee, there was testimony to the effect that 0:07:55.080 --> 0:07:59.040 Giuliani had said, you know, paraphrasing, we don't have proof, 0:07:59.080 --> 0:08:01.560 but we have lots of a race. Well theories don't 0:08:01.600 --> 0:08:05.000 cut it for a lawyer speaking in court, or even 0:08:05.080 --> 0:08:08.280 a lawyer speaking in public about such things. And that 0:08:08.520 --> 0:08:12.960 was after the suspension of his license and the court decision. 0:08:13.040 --> 0:08:16.760 So that's a good example of discipline working. Giuliani is 0:08:16.800 --> 0:08:20.720 facing another full hearing in the District of Columbia with 0:08:20.760 --> 0:08:24.480 respect to his district license to practice law, and a 0:08:24.600 --> 0:08:28.040 number of other attorneys who have lied about the election 0:08:28.240 --> 0:08:31.560 are facing proceedings before their bar associations. And let me 0:08:31.640 --> 0:08:35.880 just say, to avoid seeming overly political, you know, one 0:08:35.920 --> 0:08:39.319 of the problems here is lies and the lies about 0:08:39.320 --> 0:08:43.960 moral lago which grow out of the whole Trump situation. 0:08:44.480 --> 0:08:47.679 You know, they're being told by Republicans, but Democrats are 0:08:47.720 --> 0:08:52.400 not immune to lying. So you may remember that President 0:08:52.440 --> 0:08:57.440 Clinton had problems with his Arkansas law license and ultimately 0:08:57.600 --> 0:09:01.239 reached a settlement because he had lied in a deposition 0:09:01.320 --> 0:09:05.520 under oath. And in one legal filing, Sidney Powell made 0:09:05.520 --> 0:09:09.440 the argument to the effect that her lies were so 0:09:09.559 --> 0:09:14.080 outrageous that no reasonable person would have found them to 0:09:14.120 --> 0:09:19.200 be statements of fact. It's a wonderful strategy for somebody 0:09:19.240 --> 0:09:23.720 who has no defense. Um, it is true that you 0:09:23.760 --> 0:09:27.360 know the first Amendment status of lies is not quite 0:09:27.400 --> 0:09:31.240 as clear as the status of many other kinds of speech. 0:09:32.080 --> 0:09:36.800 Lies were thought to be largely unprotected until twelve, when 0:09:36.840 --> 0:09:40.679 the Supreme Court issued a decision that said, no, they 0:09:40.880 --> 0:09:44.240 they're actually not outside the protection of the First Amendment, 0:09:44.760 --> 0:09:47.760 but suggested that there were some circumstances in which they 0:09:47.800 --> 0:09:51.760 could be regulated, and also that the scrutiny that a 0:09:51.800 --> 0:09:56.040 court would apply to something that inhibited lying might be 0:09:56.120 --> 0:09:59.720 less than what it would apply to. Choose the most 0:10:00.040 --> 0:10:03.480 matic example, political speech that was true, although the courts 0:10:03.520 --> 0:10:06.200 can't get involved in deciding what is true and false 0:10:06.320 --> 0:10:12.439 because that smacks of the state determines truth and falsehood, 0:10:12.480 --> 0:10:16.760 and maybe incorrectly. But there is a sub category of 0:10:16.880 --> 0:10:21.040 laws that are so preposterous that no one would believe them. 0:10:21.080 --> 0:10:24.040 So if we go back to that legal definition of lying, 0:10:24.320 --> 0:10:28.520 the speaker intends the listener to believe it. So if 0:10:28.559 --> 0:10:34.080 you engage in satire that isn't immediately recognizable as funny, 0:10:34.360 --> 0:10:38.560 like badly in satire, then one defense would be it's 0:10:38.600 --> 0:10:42.319 so ridiculous nobody would believe it. And part of the 0:10:42.400 --> 0:10:46.240 problem with that defense is that she offered her statements 0:10:46.280 --> 0:10:51.520 in very serious contexts and continued to insist that they 0:10:51.559 --> 0:10:54.480 were true and to repeat them so it didn't look 0:10:54.559 --> 0:10:57.959 like I'm sort of making a joke, which is also 0:10:58.280 --> 0:11:03.520 one of Trump's occurring defenses for speech that might other 0:11:03.600 --> 0:11:06.800 wise be defamatory. Says oh, I was just joking, and 0:11:06.840 --> 0:11:09.680 we know he wasn't just joking. But in Sydney Pal's case, 0:11:09.800 --> 0:11:12.359 the judge said, no, you made this in too many places, 0:11:12.480 --> 0:11:16.080 and you offered it as truth. And you may not 0:11:16.280 --> 0:11:21.640 have submitted papers to the court making these exact claims, 0:11:21.679 --> 0:11:25.040 but your filings in court were in service of the 0:11:25.120 --> 0:11:28.120 lies you were telling outside of court. So you can't 0:11:28.160 --> 0:11:31.320 now say it was a joke or it was just 0:11:31.640 --> 0:11:36.200 an exaggeration. In fact, that judge sanctioned Powell, made her 0:11:36.320 --> 0:11:40.520 pay the city of Detroit and other people involved as 0:11:40.520 --> 0:11:46.559 a lawsuit, and referred her to the Texas Bar for sanctions, 0:11:46.600 --> 0:11:49.319 and that proceeding is ongoing. She's tried to have it 0:11:49.400 --> 0:11:53.280 dismissed in court and she failed, so those hearings are ongoing. 0:11:53.920 --> 0:11:57.520 So you mentioned Moral Lago, and at least one of 0:11:57.520 --> 0:12:02.480 the lawyers who represent former President Trump swore that there 0:12:02.520 --> 0:12:05.719 were no classified documents at Mara Lago and I think 0:12:05.760 --> 0:12:08.360 she added a term, to the best of my knowledge, 0:12:08.440 --> 0:12:12.679 something like that, after which, as we know, classified documents 0:12:12.720 --> 0:12:17.040 were seized by the FBI. Could the lawyers there be 0:12:17.280 --> 0:12:22.560 charged with perjury or obstruction of justice? Absolutely? First of all, 0:12:22.600 --> 0:12:26.400 it's a federal crime to lie to a federal officer, 0:12:26.960 --> 0:12:31.200 much less to submit a document certifying something. This was 0:12:31.280 --> 0:12:37.199 clearly during her representation of clients. She violated the strictures 0:12:37.280 --> 0:12:40.080 on her as an officer of the court. She misled 0:12:40.080 --> 0:12:43.920 the federal government in a very broad and important way. 0:12:44.200 --> 0:12:47.640 And adding to the best of my knowledge is kind 0:12:47.880 --> 0:12:52.120 of it's like putting vassaline all over yourself or teflon. 0:12:52.400 --> 0:12:55.720 I mean, you know, she's making clear I didn't really 0:12:55.800 --> 0:13:00.760 check this out and most recently or you know, I 0:13:00.800 --> 0:13:03.679 asked my client, but I didn't really press him. I 0:13:03.720 --> 0:13:09.360 didn't really look around. Subsequently, she said, um, well, it's 0:13:09.360 --> 0:13:14.080 really not my fault because other lawyers told me that 0:13:14.160 --> 0:13:17.480 all the documents have been submitted, and I signed the 0:13:17.600 --> 0:13:21.880 statement they told me to sign, or basically the statement 0:13:22.040 --> 0:13:24.839 based on their representations. I don't know whether she wrote 0:13:24.840 --> 0:13:27.679 it or they wrote it, but she's basically saying not 0:13:27.760 --> 0:13:31.720 my fault. No, when you represent a client, the lawyer 0:13:31.800 --> 0:13:35.720 has an obligation before certifying to the federal government or 0:13:35.800 --> 0:13:39.760 saying something in court, to find out whether what your 0:13:39.960 --> 0:13:43.720 client is telling you can be backed up by evidence. Now, 0:13:44.080 --> 0:13:48.800 sometimes clients do mislead their attorneys, but the attorney should 0:13:48.800 --> 0:13:52.040 be in a position to say, I did everything I 0:13:52.080 --> 0:13:56.320 could to try to verify what I was telling the 0:13:56.440 --> 0:13:59.120 court or the Department of Justice. You can't just go 0:13:59.160 --> 0:14:01.800 in and say, oh, you know, my client told me 0:14:01.840 --> 0:14:03.559 he didn't rob the bank, so I'm going to tell 0:14:03.600 --> 0:14:05.440 the court he didn't rob the bank, and I don't 0:14:05.480 --> 0:14:08.400 need to ask any questions but for documents. We have 0:14:08.600 --> 0:14:13.760 other responsibilities as members of the bar. And since that 0:14:14.000 --> 0:14:19.120 time she made some other absolutely amazing statements that are 0:14:19.240 --> 0:14:22.560 comparable to Paul saying, oh, what I was saying about 0:14:22.640 --> 0:14:27.360 the stolen election in the Venezuelan dictator capturing our voting machines, 0:14:28.160 --> 0:14:31.360 that was just a joke. Abba actually said, I think 0:14:31.480 --> 0:14:35.720 within the last two three days. Um, it's possible that 0:14:35.880 --> 0:14:41.280 the empty folders labeled confidential at Moral Lago that were 0:14:41.320 --> 0:14:46.120 in the boxes seized under warrant by the federal government 0:14:46.560 --> 0:14:52.040 contain invisible documents that no one can see. She said 0:14:52.080 --> 0:14:54.480 that in a cable interview, I really don't know how 0:14:54.520 --> 0:14:57.320 to respond to that one. Let's turn to the New 0:14:57.360 --> 0:15:01.600 York Bar associations tell us what they've done. So the 0:15:01.720 --> 0:15:06.280 first report was by the New York County Bar Association, which, 0:15:06.400 --> 0:15:10.560 while not a huge organization, has long been a leader 0:15:11.280 --> 0:15:17.000 in civic responsibility, and they pointed out that there were 0:15:17.200 --> 0:15:23.120 lawyers who were telling verifiable falsehoods, factual falsehoods that were 0:15:23.160 --> 0:15:27.800 resulting in violence and threats of violence, for example towards 0:15:27.840 --> 0:15:31.640 the federal magistrate who issued the warrant for the search 0:15:31.680 --> 0:15:36.800 of moral Lago and events leading up to the attack 0:15:36.880 --> 0:15:40.840 on the FBI building later that week. And then the 0:15:40.880 --> 0:15:44.040 New York City Bar Association, which is one of the 0:15:44.160 --> 0:15:47.600 largest bar associations in the country, issued a much more 0:15:47.640 --> 0:15:52.320 detailed report on lies about the search of moral Lago 0:15:52.720 --> 0:15:56.600 by attorneys and pointed out again that this can invoke 0:15:56.720 --> 0:16:02.480 violence against judges, FBI agents, everybody involved in law enforcement, 0:16:02.560 --> 0:16:05.160 and other public servants. And I would compare that as 0:16:05.200 --> 0:16:09.000 well to the ongoing attacks on election workers, although that 0:16:09.160 --> 0:16:13.640 was not part of the report, and they said it's 0:16:13.640 --> 0:16:16.760 it's really important that lawyers should not make claims of 0:16:16.800 --> 0:16:19.600 wrongdoing against officers of the court for which they have 0:16:20.360 --> 0:16:24.960 no factual basis, or which they know to be incorrect, 0:16:25.600 --> 0:16:30.560 or even if they're misleading, and they should not undermine 0:16:31.240 --> 0:16:36.080 the judicial process or the rule of law. Thanks so much, Catherine. 0:16:36.520 --> 0:16:40.720 That's Catherine Ross, a professor at George Washington University Law School. 0:16:42.240 --> 0:16:44.960 Congress looks like it's closed to preventing the kind of 0:16:45.080 --> 0:16:51.240 constitutional crisis avoided during the presidential transition. In this week, 0:16:51.280 --> 0:16:55.440 a Senate committee approved the revamp of an seven law 0:16:55.680 --> 0:17:00.520 that sets out congressional procedures for certifying presidential election. The 0:17:00.600 --> 0:17:05.080 legislation is intended to prevent a repeat of the presidential election, 0:17:05.359 --> 0:17:08.720 when former President Donald Trump and his allies sought to 0:17:08.880 --> 0:17:12.240 challenge the election results, leading to the insurrection at the 0:17:12.280 --> 0:17:16.040 Capital on January six. Both the Senate Majority Leader Chuck 0:17:16.119 --> 0:17:19.639 Schumer and the Senate Minority Leader Mitch McConnell support the bill. 0:17:20.359 --> 0:17:23.879 Lawmakers are under pressure to find a compromise before the 0:17:24.000 --> 0:17:27.160 end of the year because of the likelihood that House Republicans, 0:17:27.480 --> 0:17:30.960 most of whom oppose the changes, will gain control of 0:17:31.000 --> 0:17:34.800 that chamber. Joining me as elections law expert Richard brafalt 0:17:34.880 --> 0:17:37.960 A professor at Columbia Law School, Rich tell us about 0:17:37.960 --> 0:17:41.159 the current law, the Electoral Count Act. Yes, Well, the 0:17:41.160 --> 0:17:45.600 Electoral Countact was passed by Congress which sets out the 0:17:45.600 --> 0:17:49.040 procedure for the accounting of the electoral votes in Congress, 0:17:49.080 --> 0:17:52.480 for the raising and handling of complaints or questions about 0:17:52.480 --> 0:17:55.480 the electoral vote, and for the formal determination of who 0:17:55.560 --> 0:17:58.440 has won the president into election by declaring who's the 0:17:58.480 --> 0:18:01.400 winner of the electoral vote. And so the Senate bill 0:18:01.760 --> 0:18:06.880 is a bipartisan effort Republican Susan Collins and Democrat Joe Mansion. 0:18:07.560 --> 0:18:11.600 What does it do? In general? It does three or 0:18:11.640 --> 0:18:16.080 four very significant things. First, it declares that the role 0:18:16.080 --> 0:18:18.679 of the vice president, who is technically the president of 0:18:18.720 --> 0:18:21.600 the Senate and who under the Constitution has to preside 0:18:21.600 --> 0:18:25.840 over this process, has an entirely ministerial role. The vice 0:18:25.880 --> 0:18:28.600 president says, as a stand up there and to clear 0:18:28.680 --> 0:18:31.359 what happens next, and says, here's the result that the 0:18:31.440 --> 0:18:34.840 vice president has no substantive role. May have called this 0:18:34.960 --> 0:18:37.159 was one of the high points of the controversy the 0:18:37.560 --> 0:18:41.560 less election, when then President Trump insisted that then Vice 0:18:41.600 --> 0:18:45.320 President Pence had the authority to declare that certain electoral 0:18:45.400 --> 0:18:47.600 votes were invalid and not to count them, and Pence 0:18:47.680 --> 0:18:50.160 himself said he didn't have that authority. This makes it 0:18:50.200 --> 0:18:53.359 clear that the vice president has no such authority, that 0:18:53.400 --> 0:18:57.280 the vice president's role is just ministerial, like a secretary, 0:18:57.800 --> 0:19:00.160 just there to say this is what it's a as, 0:19:00.200 --> 0:19:03.600 here's the result. So that's probably a very important thing. 0:19:03.680 --> 0:19:06.480 And everyone always thought that was the rule. But because 0:19:06.520 --> 0:19:09.240 Trump made such a noise and his support is about 0:19:09.240 --> 0:19:12.080 such a noise that the vice president could in effect 0:19:12.160 --> 0:19:16.160 change the result, it's probably important that that be clarified. Second, 0:19:16.280 --> 0:19:19.720 it rather dramatically raises the threshold for objections. Under the 0:19:19.800 --> 0:19:22.240 current law. All you need to object to the electoral 0:19:22.320 --> 0:19:24.919 vote of a state and stop the whole process, and 0:19:25.119 --> 0:19:27.240 forced the two houses of Congress to meet separately to 0:19:27.240 --> 0:19:30.000 debate the objections is one member of the House and 0:19:30.080 --> 0:19:32.639 one member of the Senate, just one from each to 0:19:32.760 --> 0:19:35.800 object to say a state like the vote from Arizona 0:19:35.920 --> 0:19:40.440 or the vote from Michigan. The Senate bill raises the 0:19:40.480 --> 0:19:43.840 threshold to one fifth of the House and one fifth 0:19:43.840 --> 0:19:46.200 of the Senate. Tou you need to have twenty senators 0:19:46.440 --> 0:19:48.720 an effect, and what would that be something like eighty 0:19:48.800 --> 0:19:51.879 seven members of the House objecting to a particular state, 0:19:52.320 --> 0:19:55.760 So that's a dramatic increase in the threshold. Those are 0:19:55.760 --> 0:19:58.960 probably the two most prominent things. The bill narrows the 0:19:59.000 --> 0:20:02.320 grounds of objections really just down to to one is 0:20:02.400 --> 0:20:05.119 that the electoral winners weren't picked in the state in time, 0:20:05.600 --> 0:20:07.640 and the other there was some impropriety in the way 0:20:07.680 --> 0:20:12.480 an individual elector voted. And also creates a procedure for 0:20:12.840 --> 0:20:16.080 judicial challenges to the outcome of the election in a 0:20:16.160 --> 0:20:18.959 state to be done in an expedited way. And then 0:20:19.080 --> 0:20:21.280 clarifies that, in light of all the talk about the 0:20:21.320 --> 0:20:24.840 power of state legislatures, that any state legislative action that 0:20:24.880 --> 0:20:27.639 applies the election will count only if it was passed 0:20:27.640 --> 0:20:31.200 before election day. So you can't have state legislatures after 0:20:31.280 --> 0:20:34.159 election day trying to pass laws that under the result 0:20:34.520 --> 0:20:37.400 when those are probably the highways. A number of other 0:20:37.440 --> 0:20:41.199 more minor things, but limiting the power, declaring the limited 0:20:41.440 --> 0:20:43.360 the limited nature of the power of the vice president, 0:20:43.840 --> 0:20:48.000 raising the threshold for objections, narrowing the categories of objections, 0:20:48.400 --> 0:20:51.560 providing for expedited judicial review of challenges. Oh, and there's 0:20:51.640 --> 0:20:54.640 one more thing. There's a language in the current law 0:20:54.680 --> 0:20:56.200 that talks about what happens in the case of a 0:20:56.320 --> 0:21:00.280 failed election, and that was clearly meant to be things 0:21:00.320 --> 0:21:03.200 like an election was thrown off by a natural disaster. 0:21:03.800 --> 0:21:06.520 But some people, again trying to make trouble, would argue 0:21:06.560 --> 0:21:08.520 with the old election is one where we don't think 0:21:08.760 --> 0:21:11.040 the election went the right way, or we think that 0:21:11.080 --> 0:21:13.920 there were problems with the voting process. So the new law, 0:21:14.040 --> 0:21:17.280 the law would very clearly indicate that a state election 0:21:17.800 --> 0:21:19.840 would allow the state to delay the selection of the 0:21:19.840 --> 0:21:24.520 electors something that results from an extraordinary and catastrophic event 0:21:24.760 --> 0:21:27.760 um which I have to find by state law only. 0:21:27.800 --> 0:21:29.320 That would be something along the lines of a major 0:21:29.400 --> 0:21:33.760 hurricane or a flood. Surprisingly, got near unanimous approval by 0:21:33.760 --> 0:21:37.920 the Rules Committee. Not surprisingly, the one objection came from 0:21:37.960 --> 0:21:41.439 Senator Ted Cruz, who of course led an effort to 0:21:41.640 --> 0:21:45.520 challenge Biden's election victory. He said, quote, this bill is 0:21:45.600 --> 0:21:48.920 all about Donald J. Trump. It is about Donald Trump, 0:21:49.040 --> 0:21:52.320 isn't it. Yes, I mean everyone agrees that the old 0:21:52.600 --> 0:21:56.720 the current Electoral Account Act is flawed. It's very unclear. 0:21:57.080 --> 0:22:00.200 There's a lot of inconsistencies in it. Uh, they're particular 0:22:00.280 --> 0:22:03.840 problems if there's a disagreement from within a state as 0:22:03.880 --> 0:22:06.639 to know one chief state official stating the winner was 0:22:06.680 --> 0:22:09.399 one person. The governor says one thing, and maybe the 0:22:09.480 --> 0:22:12.400 chief Justice of the state Supreme Court or the Secretary 0:22:12.400 --> 0:22:13.760 of State of the state says something else. So there 0:22:13.800 --> 0:22:16.399 are a lot of uncertainties in it. There was always 0:22:16.400 --> 0:22:20.119 a problem with the that low, very low threshold of objections, 0:22:20.119 --> 0:22:22.480 although until recently it had never been used, or it 0:22:22.520 --> 0:22:25.080 had hardly been used, i should say, But certainly the 0:22:25.800 --> 0:22:30.160 election of attack on Congress in January six just sort 0:22:30.200 --> 0:22:35.080 of highlighted the significance of these uncertainties and the extreme 0:22:35.160 --> 0:22:39.160 importance of getting them resolved. Did it surprise you that 0:22:39.720 --> 0:22:42.880 Senate Minority Leader Mitch McConnell announced support of the bill 0:22:42.960 --> 0:22:46.679 and a number of other Republicans. Not really. I mean, 0:22:46.720 --> 0:22:49.840 I think everyone realizes that the current law is a mess, 0:22:50.119 --> 0:22:53.439 that it creates more problems than it solves, that this 0:22:53.840 --> 0:22:56.920 this surprising debate about the role of the vice president. 0:22:56.920 --> 0:22:59.960 It really seems who could possibly believe that one person 0:23:00.080 --> 0:23:03.080 could change the election, especially one person with an a 0:23:03.080 --> 0:23:05.680 stake in the outcome, Since the vice president is either 0:23:05.680 --> 0:23:07.399 going to be up for re election for vice president, 0:23:07.440 --> 0:23:09.360 or also the vice president has been running for president. 0:23:09.840 --> 0:23:12.560 You know, how one person could could legally change the outcome. 0:23:13.000 --> 0:23:14.919 You know a lot of these things just didn't make 0:23:14.920 --> 0:23:17.359 a lot of sense, but we saw how it could 0:23:17.400 --> 0:23:22.120 be weaponized in January six. So I think it's important 0:23:22.160 --> 0:23:24.680 to have it resolved. And it doesn't clearly help one 0:23:24.720 --> 0:23:27.919 side or the other. I mean, in the vice president 0:23:27.960 --> 0:23:30.280 is going to be a Democrat, you know, Kambel Harris 0:23:30.320 --> 0:23:31.679 is the person is gonna be standing up there and 0:23:31.760 --> 0:23:35.320 counting the results, So it doesn't necessarily help one side 0:23:35.359 --> 0:23:40.320 or the other. The House passed a companion bill last week. 0:23:40.560 --> 0:23:43.800 Does it differ from the Senate bill in many ways. 0:23:44.520 --> 0:23:48.320 The most obvious difference is that raises even higher the 0:23:48.400 --> 0:23:51.600 threshold for an objection to an electoral vote the Senate, 0:23:51.720 --> 0:23:54.359 as just to remind you, the current law is one 0:23:54.440 --> 0:23:58.280 person from each chamber. The Senate raises it to one 0:23:58.400 --> 0:24:01.080 fifth of each chamber. The House would raise it to 0:24:01.119 --> 0:24:03.840 one third of each chamber, which is a much higher threshold. 0:24:04.280 --> 0:24:06.320 I think there are other differences, but that's probably the 0:24:06.359 --> 0:24:10.760 most significant one. Let's discuss what it doesn't protect. So 0:24:11.200 --> 0:24:14.760 the laws that have been passed in states making it 0:24:14.800 --> 0:24:18.679 more difficult to vote. Have you kept track of you know, 0:24:18.720 --> 0:24:21.920 how many states have done that a lot. I don't 0:24:21.920 --> 0:24:25.800 have a specific number, but uh, and and and doing 0:24:25.800 --> 0:24:29.000 it in many different ways, and making it harder to register, 0:24:29.080 --> 0:24:31.520 and making it harder to vote, making it much harder 0:24:31.520 --> 0:24:36.080 to vote absentee in certain states, changing the procedures for 0:24:36.240 --> 0:24:39.920 challenging electors to make it easier for people to challenge voters. 0:24:40.240 --> 0:24:43.480 I mean, there's a lot of different of pushbacks in 0:24:43.480 --> 0:24:45.119 many states that are going to make it harder for 0:24:45.119 --> 0:24:49.800 people to vote than it was in This doesn't address 0:24:49.800 --> 0:24:53.560 any of that. Senator Schumer early on had wanted to 0:24:54.119 --> 0:24:59.000 fold the electoral college reform, the electoral account reform into 0:24:59.080 --> 0:25:02.600 a broader voting bill, voting rights bill, but which did 0:25:02.640 --> 0:25:05.520 pass the House but was filipbustered in the Senate. So he, 0:25:06.280 --> 0:25:08.919 you know, ultimately agreed that it was absolutely crucial to 0:25:08.920 --> 0:25:11.840 deal with these electoral college problems, and so you know, 0:25:11.960 --> 0:25:15.119 kind of exceeded to the Republican objections in Congress to 0:25:15.280 --> 0:25:19.199 federal law protecting the rights of voting in elections. And 0:25:19.240 --> 0:25:21.879