WEBVTT - Prosecutors Paint Maxwell as Epstein’s ‘No. 2’ 0:00:03.200 --> 0:00:07.960 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:09.160 --> 0:00:13.680 You can still listen to Collaine Maxwell's Ted Talk from 0:00:13.680 --> 0:00:17.200 She's engaging as she expresses her concerns for the ocean 0:00:18.000 --> 0:00:20.360 off I was. I went down into the deep, and 0:00:20.400 --> 0:00:23.520 I went down to over fift hundred feet and at 0:00:24.079 --> 0:00:26.600 dred feet, I switched on the lights, hoping to see 0:00:26.640 --> 0:00:30.120 a new mythical sea creature, but in fact, what I 0:00:30.160 --> 0:00:37.000 saw was a plastic hanger. I was so absolutely devastated 0:00:37.080 --> 0:00:39.159 that it was at that moment that I realized that 0:00:39.200 --> 0:00:41.159 I was really going to dedicate the rest of my 0:00:41.240 --> 0:00:46.480 life to taking an involvement with and bringing an education 0:00:46.520 --> 0:00:51.879 around the ocean. But apparently Maxwell was not so devastated 0:00:51.920 --> 0:00:56.120 to see underage girls being sexually abused by Jeffrey Epstein. 0:00:56.400 --> 0:01:00.200 According to the testimony of alleged victims at Maxwell's ex 0:01:00.320 --> 0:01:03.880 trafficking trial, for two weeks, jurors have been immersed in 0:01:03.880 --> 0:01:08.280 the luxurious and lascivious world of Epstein and Maxwell as 0:01:08.319 --> 0:01:11.600 prosecutors try to show them how young girls were drawn 0:01:11.640 --> 0:01:14.520 in by the pair and then trapped in a cycle 0:01:14.560 --> 0:01:19.240 of sexual abuse. My guest, his former federal prosecutor Jessica Roth, 0:01:19.640 --> 0:01:23.759 a professor at Cardozo Law School. Is the broad question 0:01:23.840 --> 0:01:27.120 for the juries sort of whether they were partners in 0:01:27.240 --> 0:01:30.600 crime or whether she's being used as a scapegoat for 0:01:30.720 --> 0:01:35.319 his crime. So the defense seems to be pursuing a 0:01:35.360 --> 0:01:38.399 defense strategy or theory of the case that she is 0:01:38.440 --> 0:01:42.759 there is a scapegoat for Jeffrey Epstein because he killed 0:01:42.840 --> 0:01:45.720 himself and did not go to trial, and so therefore 0:01:45.880 --> 0:01:49.120 she is essentially a proxy through which the victims can 0:01:49.200 --> 0:01:52.520 have their day in court. But I don't think that 0:01:52.600 --> 0:01:56.400 the prosecution sees it through that lens. The prosecution is 0:01:56.440 --> 0:02:00.440 presenting the case that, regardless of what mayor happened to 0:02:00.520 --> 0:02:05.760 Jeffrey Epstein, that Maxwell is independently guilty and culpable and 0:02:05.920 --> 0:02:11.240 is deserving of prosecution and conviction. How are the prosecutors 0:02:11.360 --> 0:02:15.720 building their case against Maxwell? Well, the most important evidence 0:02:15.760 --> 0:02:21.240 is the testimony of the victims who have testified in 0:02:21.400 --> 0:02:26.160 detail about their abuse and the involvement of Maxwell in 0:02:26.200 --> 0:02:30.560 that abuse, including the roles she played in communicating with 0:02:30.600 --> 0:02:34.440 them to initially establish a relationship and in some cases 0:02:34.480 --> 0:02:37.480 to set up the massages that were sexual in nature 0:02:37.720 --> 0:02:42.720 that they performed. On Epstein. So their testimony is really critical, 0:02:43.200 --> 0:02:46.519 and that's why you see the defense attorneys going after 0:02:47.000 --> 0:02:51.040 them on cross examination and after their credibility so aggressively. 0:02:51.440 --> 0:02:55.760 But the prosecution is also relying on testimony from people 0:02:55.800 --> 0:03:00.920 who worked for Epstein, like his pilot, like his household staff, 0:03:01.160 --> 0:03:06.440 to establish the relationship between Epstein and Maxwell, and how 0:03:06.520 --> 0:03:12.920 close it was, how integraly intertwined she was with Epstein's affairs, 0:03:12.919 --> 0:03:16.840 to to corroborate the account of the victims in so 0:03:17.080 --> 0:03:21.080 far as it makes it more likely that Maxwell was 0:03:21.120 --> 0:03:24.880 in fact present at times when Epstein would have been 0:03:25.240 --> 0:03:28.520 meeting the victims and abusing the victims, and just so 0:03:28.720 --> 0:03:32.520 shoring up the narrative that she was a critical player 0:03:32.760 --> 0:03:36.560 in Epstein's life in many different ways, but particularly in 0:03:36.800 --> 0:03:41.120 his residential life, managing his homes and being involved in 0:03:41.560 --> 0:03:44.400 the running of the households where so much of the 0:03:44.440 --> 0:03:48.320 abuse allegedly occurred. The alleged victims have really painted a 0:03:48.440 --> 0:03:53.160 picture of Maxwell befriending them and luring them in. Kate said, 0:03:53.200 --> 0:03:57.800 after her first sexual encounter with Epstein, Maxwell said, did 0:03:57.840 --> 0:04:00.400 you have fun. You're such a good girl, and I'm 0:04:00.440 --> 0:04:03.400 so happy you are able to come the words she 0:04:03.600 --> 0:04:08.520 chose seemed to fit the prosecution's case precisely. There has 0:04:08.600 --> 0:04:12.800 been an extraordinary level of detail in the victims testimony, 0:04:13.000 --> 0:04:17.279 and so much of it is consistent between the victim 0:04:17.440 --> 0:04:21.400 witnesses in terms of describing the role that backed well played. 0:04:21.720 --> 0:04:25.320 So the jury is going to be left to decide 0:04:25.360 --> 0:04:29.640 whether they believe the witnesses about not only the abuse 0:04:29.720 --> 0:04:34.000 that they suffered, but Maxwell's role in it, and the 0:04:34.160 --> 0:04:36.520 level of detail I think is something that is going 0:04:36.520 --> 0:04:39.919 a weigh heavily in the jury's evaluation of the testimony. 0:04:40.320 --> 0:04:44.719 Has the defense made some inroads by showing inconsistencies in 0:04:44.800 --> 0:04:48.160 some of the alleged victims statements were a trial, they 0:04:48.160 --> 0:04:53.080 were including Maxwell being present during sexual encounters with Epstein, 0:04:53.520 --> 0:04:56.400 but she was not included in their statements to the FBI. 0:04:56.920 --> 0:04:59.719 So it does seem that there were some inroads made 0:04:59.839 --> 0:05:02.760 in in teaching the credibility of some of the witnesses 0:05:02.800 --> 0:05:07.520 by pointing to apparent inconsistencies between their testimony on the 0:05:07.600 --> 0:05:12.200 stand and their previous statements. We don't know precisely what 0:05:12.440 --> 0:05:16.040 they told the FBI agents, for example, in those prior statements. 0:05:16.080 --> 0:05:18.920 I believe some of the witnesses pushed back a bit 0:05:19.200 --> 0:05:22.400 and did not acknowledge that they necessarily had made a 0:05:22.440 --> 0:05:26.360 different statement. For with the witnesses suggesting perhaps the FBI 0:05:26.440 --> 0:05:29.720 agent got the details wrong in the agents report, and 0:05:29.720 --> 0:05:33.960 that's certainly possible, but even if it is true, that 0:05:34.000 --> 0:05:39.080 doesn't necessarily destroyed the witnesses credibility. It is often the 0:05:39.120 --> 0:05:42.800 case that witnesses give accounts that are different sometimes and 0:05:42.880 --> 0:05:47.360 fairly significant detailed when they tell the story multiple times. Um, 0:05:47.480 --> 0:05:50.800 that's just an aspect of human memory and how human 0:05:50.839 --> 0:05:54.520 beings tell the story. And I think anybody who's tried 0:05:54.560 --> 0:05:57.080 a case would tell you that it is more often 0:05:57.080 --> 0:06:01.160 than not their experience that people give different details at 0:06:01.200 --> 0:06:03.440 different times when they tell a story, And it doesn't 0:06:03.440 --> 0:06:06.839 mean they're not being truthful. It can also matter what 0:06:06.920 --> 0:06:11.560 the context was when somebody told a story on one 0:06:11.560 --> 0:06:14.360 occasion versus another. And so, for example, I believe one 0:06:14.400 --> 0:06:19.240 of the victims who testified offered, by way of possible 0:06:19.279 --> 0:06:23.600 explanation for any inconsistency, that she wasn't being asked directly 0:06:23.640 --> 0:06:28.479 about Maxwell's involvement during a previous interview, whereas now during 0:06:28.520 --> 0:06:32.960 this trial she was being asked about that directly so 0:06:33.200 --> 0:06:38.520 on redirect or um in closing argument. It's often possible 0:06:38.680 --> 0:06:43.200 to provide that kind of context to a jury UM 0:06:43.279 --> 0:06:47.000 and therefore diffuse what might initially seem to be a 0:06:47.120 --> 0:06:51.560 very significant line of impeachment on cross examination directed it 0:06:51.680 --> 0:06:56.680 inconsistent statements. I've heard so many cases of multimillion dollars 0:06:56.720 --> 0:07:00.320 settlements that it doesn't affect me that these women got 0:07:00.520 --> 0:07:04.640 multimillion dollar payouts from a settlement fund set up by 0:07:04.720 --> 0:07:11.840 the Epstein estate. But the defense really played on that well. 0:07:11.880 --> 0:07:15.200 It certainly seems that the defense is pushing as one 0:07:15.360 --> 0:07:18.040 line of arguments that the witnesses are not to be 0:07:18.040 --> 0:07:23.400 believed because they have a financial motive that is causing 0:07:23.440 --> 0:07:28.720 them to testify about the abuse and Maxwell's involvement in it. 0:07:28.720 --> 0:07:32.760 It's not clear how much that's going to carry sway 0:07:32.840 --> 0:07:36.840 with the jury. UM. Was also not entirely clear is 0:07:36.960 --> 0:07:42.080 how that financial motive ties into Maxwell directly. In other words, 0:07:42.520 --> 0:07:46.000 what is the defense going to say in closing about 0:07:46.040 --> 0:07:52.360 how the victims are incentivized to testify about Maxwell's involvement, specifically, 0:07:52.800 --> 0:07:55.640 UM if they have already received the payment from the 0:07:55.760 --> 0:07:59.840 fund created for Epstein's victims. The defense may have more 0:08:00.080 --> 0:08:03.320 say about that, about some kind of additional financial incentive 0:08:03.920 --> 0:08:07.080 um that they argue that victims have by virtue of 0:08:07.160 --> 0:08:10.640 naming Maxwell. But it's not entirely entirely clear to me 0:08:10.760 --> 0:08:13.480 yet in what direction the defense is going to take 0:08:13.520 --> 0:08:17.080 that line of arguments. Might the jury be prejudiced against 0:08:17.200 --> 0:08:22.280 Maxwell because of the descriptions of this opulent lifestyle, the yachts, 0:08:22.360 --> 0:08:26.880 the private jets, the sumptuous surroundings. In theory, it could, 0:08:27.080 --> 0:08:29.520 and I would imagine that the judge would instruct the 0:08:29.600 --> 0:08:33.600 jury at the defense's request, not to consider wealth or 0:08:33.679 --> 0:08:38.520 the lavishness of one's lifestyle against Maxwell. But it's clearly 0:08:38.640 --> 0:08:42.520 relevant to the government's theory of the case to establish 0:08:42.640 --> 0:08:46.640 what that lifestyle was. It tells the story of how 0:08:46.679 --> 0:08:50.400 this abuse allegedly occurred. Because, of course, one of the 0:08:50.440 --> 0:08:54.280 ways in which Maxwell and f being allegedly lured in 0:08:54.640 --> 0:08:58.559 the victims was to offer them lavish gifts and access 0:08:58.600 --> 0:09:01.719 to this lavish lifestyle Sile, and so it would be 0:09:01.800 --> 0:09:05.400 pretty difficult to tell that story and explain to the 0:09:05.480 --> 0:09:10.480 jury how this scheme allegedly occurred without providing at least 0:09:10.559 --> 0:09:13.320 some of those details. I'm wondering if any of the 0:09:13.440 --> 0:09:17.040 jurors might fault the victims, which you shouldn't do. But 0:09:17.160 --> 0:09:20.800 my fault the victims because they were all paid by 0:09:20.920 --> 0:09:25.960 Epstein in different ways, and some of their contacts with Epstein. 0:09:26.040 --> 0:09:28.680 One of the victims, the contacts lasted from the age 0:09:28.720 --> 0:09:32.800 of seventeen to the age of thirty. And I'm wondering 0:09:32.880 --> 0:09:36.200 if that might, you know, play in the minds of 0:09:36.440 --> 0:09:40.440 some of the jurism. I think that is something that 0:09:40.480 --> 0:09:44.160 the prosecution would be thinking about as a concern. UM. 0:09:44.200 --> 0:09:47.079 I believe the prosecution put on an expert witness to 0:09:47.120 --> 0:09:50.679 address some of the psychological dynamics involved in sexual abuse, 0:09:50.880 --> 0:09:54.120 to address some of those issues, and to explain to 0:09:54.280 --> 0:09:56.760 a jury that may not otherwise be familiar with some 0:09:56.880 --> 0:10:00.360 of the dynamics. UM, why, for example, a victim might 0:10:00.400 --> 0:10:04.680 remain in communication and contact with their abuser. UM. Certainly 0:10:04.760 --> 0:10:11.080 that those are concerns that arise in cases involving sexual abuse. 0:10:11.559 --> 0:10:16.920 It's not unique to this one, UM. But through expert testimony, UM, 0:10:16.920 --> 0:10:20.040 and also on some of the redirect examination of the witnesses, 0:10:20.080 --> 0:10:22.520 really probings of these questions. You know, why did you 0:10:22.520 --> 0:10:26.200 stay in contact with him? Um? The prosecution hopes to 0:10:26.280 --> 0:10:30.480 overcome those the questions that might arise in the juror's mind, 0:10:30.760 --> 0:10:33.080 and then also to address it finally in their nation. 0:10:33.640 --> 0:10:36.400 What does the prosecution really have to prove to this 0:10:36.559 --> 0:10:41.600 jury about Maxwell that she brought the girls in and 0:10:42.080 --> 0:10:46.600 facilitated his sexual encounters with them. Is that enough? The 0:10:46.640 --> 0:10:49.240 government is going to need to show that Maxwell was 0:10:49.320 --> 0:10:54.400 a knowing participants in the sex trafficking activities that Epstein 0:10:54.559 --> 0:10:58.040 was engaged in. So as I understand that the defense 0:10:58.120 --> 0:11:01.560 theory is that Maxwell was part of that Stein's life, 0:11:01.720 --> 0:11:04.840 but that he compartmentalized his life, and so she was 0:11:05.040 --> 0:11:08.080 unaware of what it was that he was doing with 0:11:08.240 --> 0:11:12.520 the minor girls behind closed doors. And so the government 0:11:12.559 --> 0:11:16.920 needs to persuade the jury that Maxwell was involved in 0:11:16.960 --> 0:11:20.200 those sexual activities, that she played a number of roles 0:11:20.200 --> 0:11:23.760 and helping them to occur, and she did that knowing 0:11:23.880 --> 0:11:27.720 full well what it was that was happening behind closed doors, 0:11:27.920 --> 0:11:31.199 and as the government alleges, with Maxwell herself being involved 0:11:31.360 --> 0:11:34.080 in some of those activities. So it's a question of 0:11:34.120 --> 0:11:37.320 both the actions that she engaged in and her intent. 0:11:38.080 --> 0:11:42.199 Maxwell's attorneys haven't said if they'll call any witnesses yet. 0:11:42.720 --> 0:11:46.240 It seems unlikely that Maxwell herself will take to stand, 0:11:46.640 --> 0:11:50.079 but is that a possibility. There is always the possibility 0:11:50.120 --> 0:11:52.000 that she will take the stands. I think it's too 0:11:52.000 --> 0:11:54.400 soon to stay definitively one way or the other whether 0:11:54.440 --> 0:11:56.600 they're going to do that here. They're clear risks for 0:11:56.679 --> 0:11:59.440 her and taking the stands, But I'm sure her lawyers 0:11:59.520 --> 0:12:02.600 are evaluating what they think the strength of the government's 0:12:02.640 --> 0:12:05.120 evidence is at this point, and whether it's worth having 0:12:05.120 --> 0:12:08.640 a discussion about Maxwell taking the stand. The defense had 0:12:08.640 --> 0:12:12.439 given notice about several expert witnesses who they wanted to call, 0:12:12.720 --> 0:12:16.040 including psychological experts, to talk about. For example, what the 0:12:16.080 --> 0:12:19.040 defense described in pre trial filings is the halo effect 0:12:19.120 --> 0:12:22.720 that they would argue that Jeffrey Epstein benefited from, which 0:12:22.760 --> 0:12:26.000 caused people around him to essentially want to be in 0:12:26.120 --> 0:12:28.280 his presence and to see the best in him, and 0:12:28.360 --> 0:12:31.960 as a possible explanation for why Maxwell might not have 0:12:32.520 --> 0:12:35.160 known what he was doing in the parts of his 0:12:35.240 --> 0:12:39.319 life of the compartments that they argue he kept from Maxwell. 0:12:39.520 --> 0:12:43.120 So there may be expert testimony of that nature. There 0:12:43.120 --> 0:12:46.520 may be expert testimony intended to explicitly rebut some of 0:12:46.559 --> 0:12:50.040 the expert testimony about sexual abuse in its dynamics that 0:12:50.160 --> 0:12:54.000 the government offered. And beyond that, we don't know exactly 0:12:54.040 --> 0:12:56.800 what witnesses the defense they call. Whether it would be 0:12:56.840 --> 0:13:00.480 fact witnesses who might talk about the facts that support 0:13:00.559 --> 0:13:03.440 this notion that Maxwell was removed from f Stein in 0:13:03.679 --> 0:13:08.000 important ways that would undermine her presence and knowledge of 0:13:08.080 --> 0:13:11.120 his sexual activities with miners. In theory, they could call 0:13:11.200 --> 0:13:15.160 character witnesses about her character that would tend to undercut 0:13:15.520 --> 0:13:17.599 the charges that have been brought against her. So I 0:13:17.640 --> 0:13:19.960 think we really need to wait and see. It seems 0:13:19.960 --> 0:13:23.600 like there's a parallel between these two high profile cases 0:13:24.080 --> 0:13:27.040 where women are defendants on the East Coast and the 0:13:27.040 --> 0:13:29.560 West Coast. And I'm referring to the Elizabeth Holmes trial 0:13:29.960 --> 0:13:34.600 where she's blaming her former romantic partner for the things 0:13:34.600 --> 0:13:38.240 that she's charged with, and here you have Maxwell blaming 0:13:38.240 --> 0:13:41.760 her former romantic partner for the things that she's charged with. 0:13:42.160 --> 0:13:46.280 There are some interesting parallels to consider between the two cases. Obviously, 0:13:46.320 --> 0:13:49.800 the charges are so different, Homes case involving fraud, the 0:13:49.840 --> 0:13:53.160 Maxwell case involving sexual ideas of the miners. But you 0:13:53.200 --> 0:13:56.000 are right that there is a parallel in the sense 0:13:56.120 --> 0:13:58.200 of in each case you have a woman on trial 0:13:58.440 --> 0:14:02.079 and a male figure being this very dominant presence at 0:14:02.120 --> 0:14:07.319 the trial and being blamed for being essentially exclusively responsible 0:14:07.440 --> 0:14:10.200 for the crimes that have been alleged. In the Holmes case, 0:14:10.320 --> 0:14:14.000 Tony Balwanti will stand trial her chief operating officer and 0:14:14.160 --> 0:14:17.440 also her one time boyfriend, who she says essentially misled 0:14:17.480 --> 0:14:22.120 her about Parados and also controlled her through an abusive relationship. 0:14:22.240 --> 0:14:25.080 And she was of course eighteen or younger when she 0:14:25.160 --> 0:14:28.440 met him. But Elizabeth Holmes was the CEO and founder 0:14:28.480 --> 0:14:31.520 of Sara NOS. In the Maxwell case, I mean, Maxwell 0:14:31.600 --> 0:14:35.480 was clearly subordinate to Epstein in terms of the role 0:14:35.640 --> 0:14:38.800 she played in his affairs. There's no claim that she 0:14:38.920 --> 0:14:42.840 was essentially the CEO. She was very much, it would seem, 0:14:42.840 --> 0:14:46.240 an employee of Epstein, and so there's a difference there 0:14:46.320 --> 0:14:48.960 in the relative roles plate. But it will be interesting 0:14:49.040 --> 0:14:51.840 to see in the Maxwell case, as the defense starts 0:14:51.880 --> 0:14:54.080 to put forward its case, this isn't it does put 0:14:54.080 --> 0:14:56.880 forward a defense case if there is an attempt to 0:14:56.880 --> 0:15:00.480 portray that relationship between Epstein and Maxwell in a way 0:15:00.680 --> 0:15:03.880 that echo themes of the Homes trial. In any suggestion 0:15:03.920 --> 0:15:07.480 that Maxwell was sort of under steen sway in some manner. 0:15:07.680 --> 0:15:09.600 I don't think we're going to see that, but it 0:15:09.720 --> 0:15:12.440 is remarkable that we do have these two such high 0:15:12.440 --> 0:15:16.720 profile trials going on simultaneously now onto coast. Thanks Jessica. 0:15:17.040 --> 0:15:22.360 That's Professor Jessica Roth of Cardozo Law School. The Supreme 0:15:22.360 --> 0:15:25.640 Court appears ready to give another win to parents seeking 0:15:25.680 --> 0:15:29.720 public funds for religious education. At oral arguments this week, 0:15:29.920 --> 0:15:34.520 all the courts conservative justices suggested that Maine was violating 0:15:34.520 --> 0:15:38.680 the Constitution's free exercise clause by barring the use of 0:15:38.760 --> 0:15:43.520 public dollars at religious schools. The conservative justices and the 0:15:43.600 --> 0:15:47.760 liberal Johnstices appeared to have opposite views on what constitutes 0:15:47.800 --> 0:15:51.400 discrimination on the basis of religion. Here are johnstice Is, 0:15:51.400 --> 0:15:54.600 Brett Kavanaugh, and Sonya So to Mayor, and the first 0:15:54.640 --> 0:15:59.960 neighbor says, we're going to send our child children to secular, 0:16:00.000 --> 0:16:03.240 our private school. They get the benefit. The next door 0:16:03.280 --> 0:16:06.600 neighbor says, well, we want to send our children to 0:16:06.720 --> 0:16:10.640 a religious private school, and they're not going to get 0:16:10.640 --> 0:16:13.760 the benefit. And I don't see how your suggestion that 0:16:13.840 --> 0:16:18.760 the subsidy changes the analysis. That's just discrimination on the 0:16:18.800 --> 0:16:23.000 basis of religion. These parents are put through the same 0:16:23.080 --> 0:16:25.360 choice that every other parent in Maine is put to 0:16:26.600 --> 0:16:31.120 either get a free public EDGIC secular education or pay 0:16:31.200 --> 0:16:35.760 for your religious training. They're being treated as everybody else's justices. 0:16:35.840 --> 0:16:40.280 Stephen Bryan Elena Kagan question why Maine should be required 0:16:40.320 --> 0:16:43.840 to fund the teachings of the schools in question. Schools 0:16:43.840 --> 0:16:46.400 beliefs that they don't want to have gay students. They can't, 0:16:46.880 --> 0:16:49.720 they can't have gay teachers. They have to teach that 0:16:49.760 --> 0:16:52.440 the man is the boss of a woman in a 0:16:52.480 --> 0:16:55.560 bunch of other things like that. I mean, these schools 0:16:55.600 --> 0:17:01.800 are overtly discriminatory. They're proudly discriminatory. Other people won't understand 0:17:01.920 --> 0:17:05.240 why in the world their tax payer dollars are going 0:17:05.359 --> 0:17:09.400 to discriminatory schools. My guest is Richard Garnett, a professor 0:17:09.440 --> 0:17:12.880 at Notre Dame Law School. Rick explain the issue here 0:17:13.000 --> 0:17:17.080 in the context of prior cases. So the question presented 0:17:17.119 --> 0:17:19.720 here has to do with a program in the state 0:17:19.720 --> 0:17:23.720 of Maine that provides public funding to students who live 0:17:23.760 --> 0:17:27.200 in a district that doesn't have a traditional public school. 0:17:27.440 --> 0:17:30.520 It provides public funding for them to attend schools in 0:17:30.560 --> 0:17:33.639 other districts, or to use public funds to attend a 0:17:33.680 --> 0:17:36.240 private school, and students have used these public funds to 0:17:36.280 --> 0:17:40.640 attend private schools all over the country wide variation of institutions. 0:17:40.640 --> 0:17:42.600 But Maine has a rule that the funds can't be 0:17:42.680 --> 0:17:44.680 used at a school if that school is deemed to 0:17:44.680 --> 0:17:47.600 be quote unquote sectarian. And so the question is whether 0:17:47.680 --> 0:17:51.800 that exclusion by the State of Maine is unconstitutional discrimination 0:17:51.800 --> 0:17:54.520 against religion. The Supreme Court has made it clear that 0:17:54.600 --> 0:17:57.840 governments are not allowed to discriminate on the basis of 0:17:57.880 --> 0:18:01.200 religion or to hold it against citizens that they make 0:18:01.280 --> 0:18:03.320 religious choices, and so on. It has been a couple 0:18:03.320 --> 0:18:05.840 of cases in the last few years decided by the 0:18:05.880 --> 0:18:08.400 Court which have been kind of inching up to this 0:18:08.520 --> 0:18:10.640 main case. There was a case out of Missouri called 0:18:10.680 --> 0:18:13.720 Trinity Lutheran and a case out of Montana called Espinosa, 0:18:13.880 --> 0:18:16.280 And in both of those cases, again relatively recently, the 0:18:16.320 --> 0:18:19.719 Supreme Court said that when the government makes benefits available 0:18:19.880 --> 0:18:25.439 according to certain criteria, it can't discriminate against beneficiaries simply 0:18:25.480 --> 0:18:29.280 on the ground of the beneficiaries religious status. And what 0:18:29.359 --> 0:18:32.240 was Maine's position here, According to the State of Maine, 0:18:32.240 --> 0:18:34.119 they would say, well, we're not discriminating on the basis 0:18:34.119 --> 0:18:38.320 of religious status. Rather, we're discriminating or we're excluding schools 0:18:38.359 --> 0:18:42.040 that have a pervasively religious character that are involved in 0:18:42.119 --> 0:18:45.119 religious instruction. I think the word that the lawyer for 0:18:45.160 --> 0:18:47.760 the State of Maine used repeatedly was we exclude schools 0:18:47.760 --> 0:18:51.399 that are involved in instilling religious faith in children. So 0:18:51.880 --> 0:18:54.520 Maine would permit funds to go to a school that was, 0:18:54.680 --> 0:18:58.040 you know, religiously affiliated, but otherwise didn't really have any 0:18:58.040 --> 0:19:00.879 religious content. What they won't do, though, and they have 0:19:01.240 --> 0:19:03.360 you know, government officials whose job it is to kind 0:19:03.359 --> 0:19:06.920 of evaluate these schools and decide whether they are sectarian, 0:19:07.200 --> 0:19:10.600 which I guess is Maine's term for pervasively religious, or 0:19:10.640 --> 0:19:14.640 whether they're merely religiously affiliated. And the challengers are saying, well, 0:19:14.720 --> 0:19:17.480 this is the same thing if you're discriminating against people 0:19:17.840 --> 0:19:20.879 because of their religious beliefs want to educate their kids 0:19:21.040 --> 0:19:25.040 in a meaningfully religious school. Essentially, you're saying that benefits 0:19:25.080 --> 0:19:27.560 that they're otherwise entitled to as residents of the State 0:19:27.560 --> 0:19:30.040 of Maine in a district without a school, that they 0:19:30.080 --> 0:19:32.360 lose them they're being punished in a sense for their 0:19:32.359 --> 0:19:35.840 religious choice, and the lawyers for Maine and also the 0:19:35.920 --> 0:19:38.280 United States took this position would say, no, that's not 0:19:38.400 --> 0:19:40.960 what's happening here. Instead, what's happening is it Maine is 0:19:41.000 --> 0:19:44.440 simply deciding what kind of education it wants to subsidize, 0:19:44.640 --> 0:19:47.640 and Maine has decided that it only wants to subsidize 0:19:48.240 --> 0:19:51.840 secular or non sectarian education. So this is kind of 0:19:51.880 --> 0:19:54.879 the third in a series of cases that present similar issues, 0:19:54.920 --> 0:19:57.720 and I think the reason why it's closely watched is 0:19:57.760 --> 0:19:59.960 because the other two cases seem to be pointing towards 0:20:00.040 --> 0:20:01.840 this one, and so, like I guess, the issue is 0:20:01.840 --> 0:20:04.040 whether the Court is going to kind of continue on 0:20:04.119 --> 0:20:07.320 the same path that those two previous cases sketched out, 0:20:07.800 --> 0:20:10.600 or whether there's something different about Maine's program that will 0:20:10.680 --> 0:20:13.719 lead the justices to say, no, this exclusion is permissible. 0:20:13.920 --> 0:20:17.120 Did it appear that a majority of the conservative justices 0:20:17.680 --> 0:20:22.720 seemed ready to rule against Maine. That would be my impression, 0:20:22.840 --> 0:20:25.240 you know, with all the caveats that justices asked questions 0:20:25.240 --> 0:20:27.640 all the time that don't necessarily tell us which way 0:20:27.680 --> 0:20:29.920 they're going to rule. The first of this series of cases, 0:20:29.960 --> 0:20:33.160 I mentioned Trinity Lutheran from Missouri that was seven to two. 0:20:33.200 --> 0:20:36.960 It wasn't an ideologically divided case the more recent one Espinosa, 0:20:37.040 --> 0:20:39.240 that was five to four, And so I suppose it 0:20:39.280 --> 0:20:43.119 wouldn't be surprising if this case out of Maine was 0:20:43.200 --> 0:20:46.040 also five to four or six to three. Given the membership, 0:20:46.320 --> 0:20:49.320 the questions that the more conservative justices were asking seemed 0:20:49.359 --> 0:20:52.440 to be pressing Maine on the claim that this isn't 0:20:52.440 --> 0:20:55.119 really discrimination against religion. So there were a lot of 0:20:55.240 --> 0:20:58.560 hypos and kind of intriguing questions trying to flesh out 0:20:58.600 --> 0:21:01.080 the question whether what Maine is doing here is really 0:21:01.160 --> 0:21:03.680 just kind of a neutral way of deciding what it 0:21:03.720 --> 0:21:07.399 wants to fund, or is this really the same kind 0:21:07.520 --> 0:21:10.000 of exclusion on the basis of religion that the Court 0:21:10.040 --> 0:21:13.159 has already said is impermissible and tell us about the 0:21:13.200 --> 0:21:17.439 liberal justices concerns. So Justice Brier sounded a theme that 0:21:18.560 --> 0:21:21.680 has been important to him for at least two decades. 0:21:21.720 --> 0:21:25.840 He said, look, the state has an interest and of course, 0:21:25.880 --> 0:21:27.880 remember he's been in dissent in a lot of these 0:21:27.880 --> 0:21:30.400 cases over the decades. Though in a sense he's uh 0:21:30.680 --> 0:21:32.240 a little bit of a bind, as he acknowledged in 0:21:32.280 --> 0:21:34.600 the argument, but he said, the state of Maine has 0:21:34.640 --> 0:21:40.000 an interest in deciding that it will reduce the possibilities 0:21:40.119 --> 0:21:45.240 of political strife political division. If Maine just says, look, 0:21:45.280 --> 0:21:48.119 we are going to have a policy of only sending 0:21:48.200 --> 0:21:52.000 public funds to UM to non religious schools, that that 0:21:52.040 --> 0:21:53.760 will be a way of kind of preserving peace and 0:21:53.800 --> 0:21:58.640 a pluralistic society. And the more conservative justices were sort 0:21:58.640 --> 0:22:00.600 of pushed back on that and said, well, that's not 0:22:00.640 --> 0:22:03.679 a constitutional standard, And in any event, how do we 0:22:03.720 --> 0:22:06.880 know whether it's more or less divisive to exclude religious 0:22:06.920 --> 0:22:09.480 schools rather than to include them. I think for Justice 0:22:09.920 --> 0:22:13.840 Kagan and Um, she was, as she often is, very 0:22:13.880 --> 0:22:19.720 focused and precise in her questioning. She she conceded that, 0:22:19.800 --> 0:22:23.040 of course, when the government's regulating, it doesn't make sense 0:22:23.080 --> 0:22:25.800 to distinguish between, you know, discrimination on the basis of 0:22:25.840 --> 0:22:29.440 religious status and discrimination on the basis of religious use. 0:22:30.280 --> 0:22:34.080 But she proposed that when you're talking about funding or 0:22:34.119 --> 0:22:39.840 what she called subsidization, that in that particular context, states 0:22:40.200 --> 0:22:43.840 should have the leeway to decide whether or not they 0:22:43.920 --> 0:22:47.040 want to fund I think it's not a question of prohibiting, 0:22:47.040 --> 0:22:50.800 but whether or not UM they want to fund certain 0:22:50.880 --> 0:22:53.960 kinds of education or not. It's a fascinating question that 0:22:54.000 --> 0:22:56.000 comes up in law a lot is how do you 0:22:56.040 --> 0:22:59.840 decide when what the government is doing is penalizing somebody 0:23:00.119 --> 0:23:03.320 versus simply declining to benefit them. Is that a tomato 0:23:03.359 --> 0:23:06.080 tomato kind of thing? Or there are there meaningful distinctions there, 0:23:06.480 --> 0:23:09.160 And I think Justice Kagan was suggesting that there there 0:23:09.280 --> 0:23:13.399 is a distinction that can be drawn between discrimination in 0:23:13.440 --> 0:23:17.320 the context of a regulation or discrimination in the context 0:23:17.359 --> 0:23:19.640 of access to a general benefit on the one hand, 0:23:20.400 --> 0:23:23.080 and she wouldn't call it discrimination, I think, but a 0:23:23.119 --> 0:23:27.119 government decision about what it wants to fund. Would the 0:23:27.160 --> 0:23:31.040 court have to overrule the two thousand four Supreme Court 0:23:31.080 --> 0:23:35.000 precedent in the case that upheld a Washington State post 0:23:35.040 --> 0:23:40.200 secondary grant program that excluded theology students. Interesting that that's 0:23:40.240 --> 0:23:43.080 the lock feed Davy case um, And there was some 0:23:43.160 --> 0:23:46.040 exchanges between the lawyers and the justices on this point. 0:23:46.160 --> 0:23:47.760 I think it was pretty clear that they would not 0:23:48.320 --> 0:23:50.840 have to overrule it. That is, Lock feed Davy was 0:23:50.840 --> 0:23:54.399 about a particular situation where the state was declining to 0:23:54.520 --> 0:23:58.360 fund actual training for the ministry. That was the case 0:23:58.400 --> 0:24:01.320 where the state was perfectly willing to fund students going 0:24:01.359 --> 0:24:05.440 to religious schools, including pretty pervasively religious schools, and students 0:24:05.440 --> 0:24:07.760 were allowed to study religion if they wanted to to 0:24:07.840 --> 0:24:12.760 take religious ministry classes. The exclusion was very narrowly focused 0:24:12.960 --> 0:24:17.840 on majoring in basically pre minister studies, and Um the 0:24:17.920 --> 0:24:20.800 lawyer for those challenging this main law said you don't 0:24:20.840 --> 0:24:22.800 have to overrule lock the Davey to say this is 0:24:22.800 --> 0:24:25.480 a different case. Some look at this as a slippery 0:24:25.600 --> 0:24:29.360 slope that could lead to public funds being used for 0:24:29.600 --> 0:24:33.639 church sponsored charter schools. The really intriguing question is whether 0:24:33.720 --> 0:24:38.440