1 00:00:03,080 --> 00:00:11,080 Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio. 2 00:00:14,040 --> 00:00:16,959 Speaker 1: Fans and members of the Free Brittany movement will be 3 00:00:17,040 --> 00:00:21,279 Speaker 1: outside the Los Angeles Courthouse tomorrow where Brittney spears will 4 00:00:21,360 --> 00:00:23,720 Speaker 1: find out whether a judge will free her from the 5 00:00:23,800 --> 00:00:27,600 Speaker 1: conservatorship that has controlled her life and money for nearly 6 00:00:27,640 --> 00:00:31,360 Speaker 1: fourteen years. She already ousted her father from the legal 7 00:00:31,440 --> 00:00:35,080 Speaker 1: arrangement in September, and at a hearing tomorrow a judge 8 00:00:35,120 --> 00:00:38,120 Speaker 1: could end it all together. Joining me is Harry Nelson, 9 00:00:38,240 --> 00:00:41,400 Speaker 1: the founder of Nelson Hardeman. Harry tell us why she 10 00:00:41,479 --> 00:00:45,000 Speaker 1: was put under a conservatorship in the first place. The 11 00:00:45,080 --> 00:00:47,720 Speaker 1: routes of the conservatives ship started back in two thousand 12 00:00:47,720 --> 00:00:52,120 Speaker 1: and eight. There were two circumstances in which, uh, you know, 13 00:00:52,120 --> 00:00:56,320 Speaker 1: Brittany was hospitalized. In one case, she had locked herself 14 00:00:56,440 --> 00:01:00,279 Speaker 1: into a room with her son, Um and she was 15 00:01:00,880 --> 00:01:02,880 Speaker 1: refusing to release him. She was in the middle of 16 00:01:02,960 --> 00:01:07,480 Speaker 1: a dispute, a custody dispute over her children with her 17 00:01:07,520 --> 00:01:11,120 Speaker 1: former husband, Kevin Federline, and there were weren't worrying signs 18 00:01:11,160 --> 00:01:14,040 Speaker 1: about her mental health. There were a number of reports 19 00:01:14,080 --> 00:01:16,520 Speaker 1: that she was suffering from bipolar and there were other 20 00:01:16,640 --> 00:01:18,640 Speaker 1: kind of signs in her financial life that she was 21 00:01:18,680 --> 00:01:21,880 Speaker 1: making very erratic decisions on buying and selling properties. So 22 00:01:21,959 --> 00:01:25,160 Speaker 1: at the time thirteen years ago, there was good reason 23 00:01:25,360 --> 00:01:29,520 Speaker 1: for concern and that was the basis upon which Britney's father, 24 00:01:29,640 --> 00:01:33,760 Speaker 1: Jamie you know, petitioned the court to appoint him as 25 00:01:33,760 --> 00:01:37,680 Speaker 1: a conservator on her behalf. Well, what kind of um 26 00:01:38,240 --> 00:01:41,920 Speaker 1: determination does a court have to make though to put 27 00:01:42,000 --> 00:01:46,480 Speaker 1: someone under conservatorship, which can be so extensive, What kind 28 00:01:46,480 --> 00:01:49,800 Speaker 1: of a finding did the judge have to make? There 29 00:01:49,800 --> 00:01:52,400 Speaker 1: are really are two kinds of conservatorship there. It's really 30 00:01:52,720 --> 00:01:55,240 Speaker 1: the basic concept is that a conservator is a guardian, 31 00:01:55,640 --> 00:01:59,080 Speaker 1: and so there's a conservatorship of the person, and that 32 00:01:59,280 --> 00:02:02,720 Speaker 1: generally is when you demonstrate to a court that someone 33 00:02:02,880 --> 00:02:06,080 Speaker 1: is not able to properly provide for their own personal needs. 34 00:02:06,240 --> 00:02:08,960 Speaker 1: That means that for their own health and medical well being, 35 00:02:09,120 --> 00:02:12,040 Speaker 1: for food, for clothing, for shelter. The other kind of 36 00:02:12,080 --> 00:02:16,080 Speaker 1: conservatorship as a conservatorship of the estate, and that is 37 00:02:16,120 --> 00:02:18,560 Speaker 1: for somebody who is not who is not able. It 38 00:02:18,560 --> 00:02:20,800 Speaker 1: requires a showing that a person is not able to 39 00:02:20,919 --> 00:02:24,560 Speaker 1: manage their own financial resources. Um. You'll often see that 40 00:02:24,600 --> 00:02:28,280 Speaker 1: in the case of people who have compulsive spending issues 41 00:02:28,480 --> 00:02:32,520 Speaker 1: or cannot resist fraud or undue influence from others and 42 00:02:32,560 --> 00:02:37,000 Speaker 1: maybe vulnerable to abuse. So in this case, Jamie Spears 43 00:02:37,000 --> 00:02:41,160 Speaker 1: thought both basically saying that Brittany was unable to kind 44 00:02:41,160 --> 00:02:43,560 Speaker 1: of take care of her own medical needs and particularly 45 00:02:43,600 --> 00:02:46,400 Speaker 1: her mental health needs, and also that she wasn't able 46 00:02:46,440 --> 00:02:49,880 Speaker 1: to safely manage her own financial resources. And he was 47 00:02:49,960 --> 00:02:52,160 Speaker 1: able to persuade a court back then in two thousand 48 00:02:52,200 --> 00:02:56,000 Speaker 1: eight too, to appoint him as a conservator. Some of 49 00:02:56,000 --> 00:02:59,920 Speaker 1: the things he did would strike most people as out rate. 50 00:03:00,120 --> 00:03:04,280 Speaker 1: Just she said that he compelled her to take lithium 51 00:03:04,320 --> 00:03:08,040 Speaker 1: against her will. He insisted does she keep an i 52 00:03:08,240 --> 00:03:12,799 Speaker 1: U D for birth control? Required to undertake performances when 53 00:03:12,840 --> 00:03:18,160 Speaker 1: she didn't want to. Are those kinds of decisions normal 54 00:03:18,440 --> 00:03:23,320 Speaker 1: in a conservatorship? I would say that the level of control, 55 00:03:23,400 --> 00:03:27,000 Speaker 1: both on her medical decision making and the business business 56 00:03:27,560 --> 00:03:32,000 Speaker 1: we were disturbing and very atypical. It is not an 57 00:03:32,080 --> 00:03:36,080 Speaker 1: uncommon issue for UH for people to be required to 58 00:03:36,120 --> 00:03:39,200 Speaker 1: take medication you know when that medication is life saving. 59 00:03:39,840 --> 00:03:43,280 Speaker 1: But in this case, the suggestion that she UH that 60 00:03:43,360 --> 00:03:45,160 Speaker 1: you know that that that that that has come up 61 00:03:45,200 --> 00:03:48,160 Speaker 1: that Brittany was was forced to take lithium against her 62 00:03:48,160 --> 00:03:52,080 Speaker 1: will so that she could tour UH and perform, you know, 63 00:03:52,080 --> 00:03:55,880 Speaker 1: in concerts around the world is disturbing and atypical that 64 00:03:55,880 --> 00:03:59,480 Speaker 1: that sounds like a medication not for her essential health needs, 65 00:03:59,480 --> 00:04:03,400 Speaker 1: but really for her father's business interest in keeping her working. 66 00:04:03,680 --> 00:04:06,160 Speaker 1: And the allegations regarding the hi u D. Likewise, there 67 00:04:06,200 --> 00:04:10,920 Speaker 1: are there are situations where people who have severe cognitive disabilities. 68 00:04:10,960 --> 00:04:13,680 Speaker 1: For example, UM, there are you know, parent a parent 69 00:04:13,720 --> 00:04:16,280 Speaker 1: who was appointed as a conservator may may have concerns 70 00:04:16,320 --> 00:04:19,080 Speaker 1: that this person, you know, that that's a mistake for 71 00:04:19,120 --> 00:04:21,880 Speaker 1: this person to become a parent. But in this case 72 00:04:21,920 --> 00:04:25,600 Speaker 1: here too, Brittany clearly was a highly functional person, and 73 00:04:25,760 --> 00:04:29,839 Speaker 1: the UH of the ability to limit her reproductive choices 74 00:04:29,920 --> 00:04:33,640 Speaker 1: and prevent her from having a child was disturbing. And 75 00:04:33,880 --> 00:04:36,480 Speaker 1: the most disturbing I think of all was the invasive 76 00:04:37,800 --> 00:04:42,039 Speaker 1: allegations about control, you know, a total loss of privacy. 77 00:04:42,120 --> 00:04:45,719 Speaker 1: Every her her cell phone mirrored, so that every single 78 00:04:45,800 --> 00:04:49,200 Speaker 1: text she sent to any person was known to UH, 79 00:04:49,320 --> 00:04:52,240 Speaker 1: the security firm in to her father, that her bedroom 80 00:04:52,360 --> 00:04:56,320 Speaker 1: was implanted with recording devices. Those are unheard of and 81 00:04:56,400 --> 00:05:01,080 Speaker 1: really shocking, abusive and suggestive that this conservatorship went to 82 00:05:01,120 --> 00:05:04,880 Speaker 1: places that are really unimaginable and should never have happened 83 00:05:05,240 --> 00:05:09,040 Speaker 1: in an appropriately functioning system. So is that something that 84 00:05:09,080 --> 00:05:13,279 Speaker 1: the judge should have caught I think the answer is yes. 85 00:05:13,720 --> 00:05:16,800 Speaker 1: But I think we also have to lay part with 86 00:05:17,000 --> 00:05:19,960 Speaker 1: the lay. There's there's plenty of blame to go around here. Um. 87 00:05:20,000 --> 00:05:22,960 Speaker 1: I think that the Judge Penny, there needs to be 88 00:05:23,040 --> 00:05:26,280 Speaker 1: questions about why there wasn't more scrutiny and why this 89 00:05:26,360 --> 00:05:29,279 Speaker 1: was allowed to persist for thirteen years. There should be 90 00:05:29,400 --> 00:05:32,680 Speaker 1: questions as to Britney's counsel, who was not of her 91 00:05:32,720 --> 00:05:35,240 Speaker 1: own choosing at the time. Right now, Britney now has 92 00:05:35,360 --> 00:05:38,680 Speaker 1: effective counsel who was only appointed in the last couple 93 00:05:38,680 --> 00:05:41,200 Speaker 1: of months, But she for for years was represented by 94 00:05:41,200 --> 00:05:43,839 Speaker 1: a court appointed lawyer who appears to have done like 95 00:05:44,000 --> 00:05:47,680 Speaker 1: little to nothing to question anything that was going on. 96 00:05:48,080 --> 00:05:50,280 Speaker 1: So she was sort of passive and it's a real 97 00:05:50,360 --> 00:05:52,480 Speaker 1: question to me what her lawyer was doing. And of 98 00:05:52,480 --> 00:05:54,480 Speaker 1: course the last place we have to look is at 99 00:05:54,480 --> 00:05:57,560 Speaker 1: her father and his counsel and how he was permitted 100 00:05:57,960 --> 00:06:01,920 Speaker 1: to just have kind of untrammeled control, you know, even 101 00:06:01,920 --> 00:06:03,600 Speaker 1: though a lawyer is supposed to be an advocate for 102 00:06:03,640 --> 00:06:06,880 Speaker 1: their client. How there was no sort of oversight even 103 00:06:06,920 --> 00:06:09,360 Speaker 1: by his lawyer, to question the ethical ends of this 104 00:06:09,400 --> 00:06:12,000 Speaker 1: conservatorship in the place where it had turned fraudulent and 105 00:06:12,040 --> 00:06:14,960 Speaker 1: abusive is to me also a fair question for us 106 00:06:15,000 --> 00:06:18,520 Speaker 1: to ask. If someone who is as famous as Brittany Spears, 107 00:06:18,560 --> 00:06:22,400 Speaker 1: who's performing around the world, who has tons of fans 108 00:06:22,680 --> 00:06:25,760 Speaker 1: watching her, if that could happen to her for thirteen years, 109 00:06:25,800 --> 00:06:28,800 Speaker 1: what happens to an average person who gets put into 110 00:06:28,800 --> 00:06:31,359 Speaker 1: a conservator ship? How did they get out of it? 111 00:06:31,360 --> 00:06:33,720 Speaker 1: It's a fair question. I think our system is much 112 00:06:33,760 --> 00:06:37,279 Speaker 1: better at at starting conservatorships than an ending them. And 113 00:06:37,400 --> 00:06:39,440 Speaker 1: like a lot of things in our society, they have 114 00:06:39,520 --> 00:06:42,160 Speaker 1: kind of a self perpetuating quality. Um. You know, I 115 00:06:42,320 --> 00:06:44,720 Speaker 1: I've seen plenty of There are plenty of places where 116 00:06:44,760 --> 00:06:49,200 Speaker 1: conservatorships are necessary, you know, where you have frankly sad 117 00:06:49,760 --> 00:06:53,360 Speaker 1: uh situations in family life, where you have a child, 118 00:06:53,560 --> 00:06:57,480 Speaker 1: for example, who's not who just physically has cognitive impairments 119 00:06:57,480 --> 00:06:59,320 Speaker 1: that don't allow them to take care of themselves. Where 120 00:06:59,360 --> 00:07:02,760 Speaker 1: you have a sibling, for example, who is dealing with 121 00:07:02,800 --> 00:07:05,920 Speaker 1: mental health challenges and not able to protect themselves. We're 122 00:07:05,920 --> 00:07:08,480 Speaker 1: living through a time when the number one form of 123 00:07:08,520 --> 00:07:11,720 Speaker 1: abuse that we're seeing spread is elder abuse, elder abuse 124 00:07:11,720 --> 00:07:14,000 Speaker 1: in the form of financial abuse, and you have children 125 00:07:14,000 --> 00:07:18,720 Speaker 1: of aging parents who need structures to protect their family members. Right, 126 00:07:18,760 --> 00:07:20,800 Speaker 1: So there is a legitimate place for this, But what 127 00:07:20,960 --> 00:07:23,920 Speaker 1: this case highlights is that there is also a very 128 00:07:23,960 --> 00:07:27,280 Speaker 1: abusive side to these where people can be preyed upon 129 00:07:27,640 --> 00:07:29,760 Speaker 1: by the very people who are supposed to be protecting them. 130 00:07:29,960 --> 00:07:32,560 Speaker 1: And I think that we are being forced to confront 131 00:07:32,600 --> 00:07:36,200 Speaker 1: that there is a substantial amount of abuse by the 132 00:07:36,240 --> 00:07:39,880 Speaker 1: conservators by the guardians themselves, and I think that's something 133 00:07:39,920 --> 00:07:42,520 Speaker 1: that is going to need attention and and is going 134 00:07:42,560 --> 00:07:45,600 Speaker 1: to lead to much more scrutiny and much more pressure 135 00:07:45,600 --> 00:07:49,120 Speaker 1: on judges in the future to h to question and 136 00:07:49,200 --> 00:07:52,720 Speaker 1: make sure that that that people aren't using their guardianship 137 00:07:52,760 --> 00:07:57,440 Speaker 1: powers under conservatorship to uh to to engage in abuse themselves. 138 00:07:57,920 --> 00:08:01,320 Speaker 1: In an abrupt turn around from his position, her father 139 00:08:01,520 --> 00:08:05,080 Speaker 1: earlier this year said that he wanted the conservatorship to end. 140 00:08:05,520 --> 00:08:08,480 Speaker 1: So he wants it to end. She wants it to end. 141 00:08:08,760 --> 00:08:11,000 Speaker 1: How likely is it that the judge will end it? 142 00:08:11,800 --> 00:08:15,280 Speaker 1: So I think there's a good chance that the judge 143 00:08:15,320 --> 00:08:19,559 Speaker 1: is either going to terminate the conservatorship at the next hearing, 144 00:08:19,720 --> 00:08:22,680 Speaker 1: or at least at a minimum, provide a roadmap of 145 00:08:22,720 --> 00:08:24,880 Speaker 1: the steps that the judge is going to require and 146 00:08:24,920 --> 00:08:26,920 Speaker 1: the showing that's going to be needed to terminated. So 147 00:08:27,160 --> 00:08:28,760 Speaker 1: it was it's gonna be one or the other by 148 00:08:28,800 --> 00:08:30,760 Speaker 1: the way we should It's important to note that her 149 00:08:30,800 --> 00:08:35,880 Speaker 1: father's reversal is only really only happened in the last 150 00:08:36,040 --> 00:08:40,440 Speaker 1: several months when it became clear that everybody associated with him, 151 00:08:40,800 --> 00:08:44,120 Speaker 1: hit the financial managers, the the attorneys, everybody working for 152 00:08:44,200 --> 00:08:46,520 Speaker 1: him were sort of like rats office thinking ship, and 153 00:08:46,600 --> 00:08:50,840 Speaker 1: that he is really facing significant financial risk for his 154 00:08:50,920 --> 00:08:53,360 Speaker 1: abusive behavior and posential that he's going to need to 155 00:08:53,360 --> 00:08:56,880 Speaker 1: repay millions of dollars. So his his last his reversal 156 00:08:56,920 --> 00:09:00,440 Speaker 1: should not be seen as as a supportive decision, in 157 00:09:00,480 --> 00:09:03,079 Speaker 1: my opinion, It should be seen as really a kind 158 00:09:03,120 --> 00:09:06,640 Speaker 1: of desperate attempt to uh to get out of harm's 159 00:09:06,679 --> 00:09:10,160 Speaker 1: way himself. But but I think the fundamental challenge for 160 00:09:10,160 --> 00:09:12,600 Speaker 1: for Judge Penny is going to figure out It's going 161 00:09:12,640 --> 00:09:14,520 Speaker 1: to be to figure out how to how to set 162 00:09:14,520 --> 00:09:17,079 Speaker 1: things right. And I think it makes sense and it's 163 00:09:17,080 --> 00:09:20,760 Speaker 1: appropriate for her to terminate the conservatorship on the petition 164 00:09:20,840 --> 00:09:25,160 Speaker 1: that was filed by Britney's lawyer, Matthew Rosenart hopefully hopefully 165 00:09:25,200 --> 00:09:29,240 Speaker 1: this this coming week. Spears said she'd done research that 166 00:09:29,280 --> 00:09:33,079 Speaker 1: showed her Conservative ship could be ended without further evaluation 167 00:09:33,120 --> 00:09:35,920 Speaker 1: of her. Is that the case or what it would 168 00:09:35,960 --> 00:09:40,880 Speaker 1: have to be proven under California law so traditionally so, 169 00:09:40,880 --> 00:09:42,560 Speaker 1: so judge is going to have to find that she 170 00:09:42,840 --> 00:09:47,240 Speaker 1: is she's capable of managing her that she you know, 171 00:09:47,280 --> 00:09:50,440 Speaker 1: she's capable of relying and taking the advice of the 172 00:09:50,480 --> 00:09:54,040 Speaker 1: advisors around her to uh, you know, to appropriately manage 173 00:09:54,040 --> 00:09:58,200 Speaker 1: her financial affairs. And also that she is likewise able 174 00:09:58,240 --> 00:10:01,560 Speaker 1: to you know, uh rely upon and she's listening to 175 00:10:02,240 --> 00:10:06,200 Speaker 1: uh doctors and getting appropriate medical care. Um uh And 176 00:10:06,280 --> 00:10:09,920 Speaker 1: so I think you know my typically you know, on 177 00:10:09,960 --> 00:10:12,680 Speaker 1: the on the issue of her mental state, judges have 178 00:10:13,000 --> 00:10:20,040 Speaker 1: wanted psychological psychiatric evaluations hum of the Conservatives conservative uh, 179 00:10:20,120 --> 00:10:23,679 Speaker 1: the person in Brittany's position to to have some record 180 00:10:23,720 --> 00:10:26,319 Speaker 1: to go on, um, you know. And that's really the 181 00:10:26,360 --> 00:10:28,640 Speaker 1: big question is is Judge Penny going to say that 182 00:10:28,640 --> 00:10:31,080 Speaker 1: that's still necessary. Brittany has made it very clear that 183 00:10:31,160 --> 00:10:33,760 Speaker 1: she doesn't want to have to undergo that evaluation, and 184 00:10:33,840 --> 00:10:38,160 Speaker 1: that her performance over the last uh several years it 185 00:10:38,200 --> 00:10:40,640 Speaker 1: should be indicative that she's like a very high functioning 186 00:10:40,679 --> 00:10:45,880 Speaker 1: person who is obviously succeeding in uh, you know, in 187 00:10:45,679 --> 00:10:49,760 Speaker 1: in in building an incredible career and uh and it's 188 00:10:49,760 --> 00:10:52,120 Speaker 1: clear that she's got good and she's getting good advice 189 00:10:52,160 --> 00:10:54,600 Speaker 1: and she's following it. So it's really a close call. 190 00:10:54,720 --> 00:10:58,199 Speaker 1: To me, there's no reformal requirement that a psychiatric or 191 00:10:58,280 --> 00:11:02,600 Speaker 1: psychological evaluation done, but and it would be a conservative step, 192 00:11:02,640 --> 00:11:04,800 Speaker 1: But I do I suspect that the judge is going 193 00:11:04,840 --> 00:11:07,160 Speaker 1: to be feeling an awful lot of pressure to put 194 00:11:07,200 --> 00:11:09,840 Speaker 1: this thing um in the rear view mirror, and so 195 00:11:09,920 --> 00:11:12,560 Speaker 1: that she's not going to require That's just that's my 196 00:11:12,559 --> 00:11:14,920 Speaker 1: my prediction. But we'll we'll have to find out this week. 197 00:11:15,480 --> 00:11:20,640 Speaker 1: So Brittany's lawyer vows to investigate her father, Will his 198 00:11:20,720 --> 00:11:25,800 Speaker 1: financial decisions be investigated when the conservatorship is ended and 199 00:11:26,440 --> 00:11:31,079 Speaker 1: control is given back to her over her finances. I 200 00:11:31,120 --> 00:11:33,679 Speaker 1: think we I think it's almost the certainty that we're 201 00:11:33,679 --> 00:11:37,760 Speaker 1: going to see a substantial investigation, particularly given the given 202 00:11:37,760 --> 00:11:43,360 Speaker 1: the allegations of uh, the of the bugging, you know that, 203 00:11:43,600 --> 00:11:47,520 Speaker 1: and all the security and personal privacy invasions that happened 204 00:11:47,559 --> 00:11:51,080 Speaker 1: at substantial expense. I think that is that's one factor 205 00:11:51,120 --> 00:11:53,880 Speaker 1: that's likely to lead to this investigation. The other is 206 00:11:53,920 --> 00:11:56,400 Speaker 1: that we we heard from one of the co conservators 207 00:11:56,440 --> 00:11:59,360 Speaker 1: of the estate, who was the professionally appointed person that 208 00:11:59,400 --> 00:12:02,120 Speaker 1: Brittany spot they're spent sent at least a million, and 209 00:12:02,440 --> 00:12:06,520 Speaker 1: I believe the allegation was several million dollars on pr 210 00:12:07,200 --> 00:12:11,439 Speaker 1: and on lawyers try to fight his daughter's own efforts 211 00:12:11,559 --> 00:12:14,120 Speaker 1: to uh to sort of write the ship and to 212 00:12:14,240 --> 00:12:17,760 Speaker 1: terminate the conservative ship. So um. The fact that he 213 00:12:17,840 --> 00:12:20,640 Speaker 1: spent so many millions of dollars that don't appear to 214 00:12:20,640 --> 00:12:22,640 Speaker 1: have been for her benefit and appear to have been 215 00:12:22,679 --> 00:12:26,040 Speaker 1: to preserve his power is almost certainly, in my view, 216 00:12:26,200 --> 00:12:29,199 Speaker 1: likely to lead to an investigation. And I fully expect 217 00:12:29,200 --> 00:12:30,920 Speaker 1: that at some point we're going to see an order 218 00:12:31,040 --> 00:12:34,480 Speaker 1: from the court for him to return moneys that were 219 00:12:34,480 --> 00:12:38,400 Speaker 1: Brittany's that he spent not on her behalf but ultimately 220 00:12:38,440 --> 00:12:40,800 Speaker 1: for his own gain, uh, and that he is going 221 00:12:40,840 --> 00:12:43,600 Speaker 1: to you know, be be forced to repay. So we'll 222 00:12:43,600 --> 00:12:47,200 Speaker 1: see what happens tomorrow. Thanks Harry. That's Harry Nelson of 223 00:12:47,280 --> 00:12:52,160 Speaker 1: Nelson Hardeman in a high stakes gamble. Eighteen year old 224 00:12:52,240 --> 00:12:55,439 Speaker 1: Kyle Rittenhouse took the stand at his murder trial yesterday 225 00:12:55,800 --> 00:12:58,600 Speaker 1: and testified that he was under attack when he killed 226 00:12:58,600 --> 00:13:01,800 Speaker 1: two men and wounded a ord during a chaotic night 227 00:13:01,840 --> 00:13:07,400 Speaker 1: of protests in Kenosha, Wisconsin. During cross examination, prosecutor Thomas 228 00:13:07,480 --> 00:13:11,360 Speaker 1: Binger question why Rittenhouse brought his A R style semi 229 00:13:11,400 --> 00:13:16,280 Speaker 1: automatic rifle to Kenosha. I need the gun because if 230 00:13:16,280 --> 00:13:19,760 Speaker 1: I had to protect myself because somebody attacked me. Why 231 00:13:19,800 --> 00:13:22,000 Speaker 1: would you think anybody would do that? I don't know, 232 00:13:22,920 --> 00:13:25,280 Speaker 1: but you clearly planned on it. You were prepared for it. 233 00:13:25,320 --> 00:13:28,400 Speaker 1: You thought it was gonna happen. No, I didn't. That's 234 00:13:28,400 --> 00:13:30,480 Speaker 1: the whole reason you brought the gun, isn't it. I 235 00:13:30,559 --> 00:13:34,640 Speaker 1: brought the gun to protect myself. My guest is John Gross, 236 00:13:34,640 --> 00:13:37,520 Speaker 1: a professor at the University of Wisconsin Law School and 237 00:13:37,559 --> 00:13:42,839 Speaker 1: director of the Public Defender Project, explain why Rittenhouses lawyers 238 00:13:42,920 --> 00:13:46,480 Speaker 1: asked the judge for a mistrial. Well, the request for 239 00:13:46,520 --> 00:13:49,920 Speaker 1: a mistrial was based on the fact that the prosecutor 240 00:13:50,080 --> 00:13:55,320 Speaker 1: made some commentary or asked some questions about the fact 241 00:13:55,360 --> 00:13:59,240 Speaker 1: that Kyle Rittenhouse did not talk to the police officers 242 00:13:59,360 --> 00:14:03,160 Speaker 1: who took him into custody and first interviewed him. And 243 00:14:03,200 --> 00:14:06,160 Speaker 1: the problem with that is that there is a longstanding 244 00:14:06,559 --> 00:14:11,760 Speaker 1: constitutional rule against prosecutors commenting on the fact that a 245 00:14:11,800 --> 00:14:15,679 Speaker 1: defendant chose to remain silent when questioned by law enforcement, 246 00:14:15,800 --> 00:14:18,800 Speaker 1: because that is a constitutional right that we all have. 247 00:14:19,360 --> 00:14:21,760 Speaker 1: Mr Rittenhouse doesn't have to talk to law enforcement. He 248 00:14:21,840 --> 00:14:23,720 Speaker 1: doesn't have to take the stand at his own trial, 249 00:14:23,760 --> 00:14:28,400 Speaker 1: even though he did. And so prosecutors who suggest or 250 00:14:29,400 --> 00:14:33,760 Speaker 1: question defendant about why they didn't talk to police, why 251 00:14:33,800 --> 00:14:38,080 Speaker 1: they didn't offer some type of exculpatory testimony, why in 252 00:14:38,120 --> 00:14:41,600 Speaker 1: this case Mr Rittenhouse didn't say I fired in self defense, 253 00:14:41,960 --> 00:14:44,520 Speaker 1: that would be improper for them to do. They're asking, 254 00:14:44,640 --> 00:14:49,160 Speaker 1: essentially the jury to infer that their failure to talk 255 00:14:49,240 --> 00:14:52,160 Speaker 1: to the police suggested that they were guilty. That was 256 00:14:52,240 --> 00:14:55,920 Speaker 1: the basis of the defense motion yesterday. Um On a 257 00:14:55,960 --> 00:14:59,640 Speaker 1: more basic level, of mistrial occurs when something about the 258 00:14:59,640 --> 00:15:03,720 Speaker 1: perce meetings because of some highly prejudicial and improper evidence 259 00:15:03,840 --> 00:15:06,760 Speaker 1: that was introduced, that the proceedings themselves become sort of 260 00:15:06,800 --> 00:15:12,560 Speaker 1: fundamentally unfair and it requires a new trial. Now in 261 00:15:12,600 --> 00:15:16,720 Speaker 1: this case, they were asking for a mistrial with prejudice 262 00:15:16,840 --> 00:15:21,200 Speaker 1: so that written House couldn't be tried again. That's pretty 263 00:15:21,280 --> 00:15:25,400 Speaker 1: unusual for a judge to grant, isn't it. Yes, mistrials 264 00:15:25,480 --> 00:15:28,840 Speaker 1: in general, aside from trials where there is a hung jury, 265 00:15:28,880 --> 00:15:31,480 Speaker 1: which also results in a mistrial, but the granting of 266 00:15:31,520 --> 00:15:35,280 Speaker 1: a mistrial during the trial is very rare, and the 267 00:15:35,360 --> 00:15:39,320 Speaker 1: granting of one with prejudices even rarer. Still. You know, 268 00:15:39,480 --> 00:15:42,880 Speaker 1: throughout the course of a trial, sometimes witnesses make statements 269 00:15:42,920 --> 00:15:47,240 Speaker 1: that are not admissible, Questions are asked that are improper, 270 00:15:47,600 --> 00:15:50,960 Speaker 1: but judges simply give an instruction to the jury. They 271 00:15:51,080 --> 00:15:53,280 Speaker 1: uphold an objection and they tell the jury that they 272 00:15:53,320 --> 00:15:56,640 Speaker 1: should disregard the question. Or a witness says something that's 273 00:15:56,680 --> 00:15:59,520 Speaker 1: irrelevant and the judge says, don't pay any attention to that. 274 00:15:59,600 --> 00:16:02,880 Speaker 1: And so usually judges have these curative instructions that they 275 00:16:02,880 --> 00:16:07,120 Speaker 1: give throughout the trial, and that's sufficient and the judge 276 00:16:07,160 --> 00:16:09,920 Speaker 1: doesn't need to say, what we have to startle over again, 277 00:16:10,160 --> 00:16:13,160 Speaker 1: this is a mistrial. The root of the argument that 278 00:16:13,240 --> 00:16:18,160 Speaker 1: the defense was making the mistrial with prejudice. That can 279 00:16:18,200 --> 00:16:23,080 Speaker 1: be granted when a judge believes that the prosecutor intentionally 280 00:16:23,240 --> 00:16:28,840 Speaker 1: caused the mistrial. So the prosecutor knew the evidence was improper, 281 00:16:28,960 --> 00:16:32,000 Speaker 1: knew that the questions they were asking were improper, but 282 00:16:32,160 --> 00:16:36,200 Speaker 1: did it anyway and did it intentionally to create a 283 00:16:36,240 --> 00:16:41,400 Speaker 1: situation where the trial became fundamentally unfair. And if they 284 00:16:41,480 --> 00:16:45,200 Speaker 1: do that on purpose, then there is the possibility that 285 00:16:45,200 --> 00:16:48,160 Speaker 1: the judge can say double jeopardy does apply here and 286 00:16:48,200 --> 00:16:51,600 Speaker 1: you can't retry to defend it. In this case, the 287 00:16:51,640 --> 00:16:54,680 Speaker 1: prosecutor told the judge he'd been acting in good faith. 288 00:16:54,960 --> 00:16:58,240 Speaker 1: The judge said, I don't believe that. There is seems 289 00:16:58,240 --> 00:17:02,800 Speaker 1: to be a very antagonist relationship between the judge and 290 00:17:02,840 --> 00:17:06,800 Speaker 1: the prosecutor. He even yelled at him. I'm just wondering 291 00:17:07,040 --> 00:17:09,920 Speaker 1: how that affects the jury when they see the judge 292 00:17:10,000 --> 00:17:15,199 Speaker 1: and the prosecutor not behaving properly. Well. Part of the 293 00:17:15,240 --> 00:17:19,359 Speaker 1: initial jury instructions that jurors get is that they they 294 00:17:19,400 --> 00:17:22,399 Speaker 1: shouldn't draw any inferences from the fact that a judge 295 00:17:22,440 --> 00:17:27,360 Speaker 1: may uphold an objection or chastise one of the attorneys 296 00:17:27,520 --> 00:17:30,399 Speaker 1: in the course of the case. That basically the judge 297 00:17:30,480 --> 00:17:32,600 Speaker 1: gives them an instruction to say that the jury shouldn't 298 00:17:32,600 --> 00:17:35,639 Speaker 1: infer any from this. It's it's not personal. Lawyers have 299 00:17:35,680 --> 00:17:39,080 Speaker 1: an obligation to make objections, They have obligations to make arguments. 300 00:17:39,119 --> 00:17:41,919 Speaker 1: The judge has an obligation to to rule on those 301 00:17:41,960 --> 00:17:45,000 Speaker 1: and to keep order in the courtroom, and that the 302 00:17:45,080 --> 00:17:48,719 Speaker 1: advocates are going to make passionate arguments for their cause, 303 00:17:48,800 --> 00:17:52,920 Speaker 1: and and that that's okay. It does become problematic if 304 00:17:53,200 --> 00:17:55,960 Speaker 1: if a jury starts to perceive that the judge is 305 00:17:56,080 --> 00:18:00,879 Speaker 1: hostile to one party's point of view or one party's case, 306 00:18:01,240 --> 00:18:04,640 Speaker 1: or has a dislike for one of the litigants and 307 00:18:04,880 --> 00:18:08,119 Speaker 1: is demonstrating that through the language they use or the 308 00:18:08,160 --> 00:18:10,040 Speaker 1: way that they're referring to them or treating them throughout 309 00:18:10,080 --> 00:18:13,880 Speaker 1: the trial. I don't see anything that rises to that 310 00:18:14,040 --> 00:18:17,920 Speaker 1: level in this case. You know, the prosecution here has 311 00:18:18,560 --> 00:18:21,119 Speaker 1: kind of a challenging case to make out. They have 312 00:18:21,280 --> 00:18:25,320 Speaker 1: to disprove beyond a reasonable doubt that Mr Rittenhouse acted 313 00:18:25,359 --> 00:18:28,120 Speaker 1: in self defense. So it's a challenging case for them, 314 00:18:28,160 --> 00:18:31,120 Speaker 1: and they are pushing hard. They're they're pushing the limits. 315 00:18:31,560 --> 00:18:34,800 Speaker 1: But I think one of the things that sparked the 316 00:18:34,920 --> 00:18:41,200 Speaker 1: judges anger at the prosecutor yesterday was this rule about 317 00:18:41,320 --> 00:18:45,280 Speaker 1: not commenting on a defendant's silence is a long standing 318 00:18:45,359 --> 00:18:49,240 Speaker 1: rule and it implicates constitutional rights to the defendant. And 319 00:18:49,640 --> 00:18:53,720 Speaker 1: this particular prosecutor is very experienced. So this was not 320 00:18:53,840 --> 00:18:56,520 Speaker 1: an accident in the judge's mind. This was not sort 321 00:18:56,520 --> 00:18:59,680 Speaker 1: of a rookie mistake. This was something that the prosecutor 322 00:19:00,200 --> 00:19:02,720 Speaker 1: knew he shouldn't be doing, but he did it anyway. 323 00:19:02,880 --> 00:19:06,080 Speaker 1: And that's why the judge says to him that the 324 00:19:06,200 --> 00:19:08,840 Speaker 1: judge doesn't feel like he was acting in good faith. Now, 325 00:19:09,359 --> 00:19:11,840 Speaker 1: is that one incident even if the judge thinks it 326 00:19:11,880 --> 00:19:16,400 Speaker 1: wasn't bad faith enough to prompt an entire mistrial, Probably not. 327 00:19:16,600 --> 00:19:18,760 Speaker 1: It doesn't rise to that level. And the judge addressed 328 00:19:18,760 --> 00:19:20,600 Speaker 1: it as it came up, and then he addressed it 329 00:19:20,640 --> 00:19:23,320 Speaker 1: outside of the presence of the jury. So let's talk 330 00:19:23,320 --> 00:19:27,840 Speaker 1: about Rittenhouse testifying. Did he help or hurt himself with 331 00:19:27,920 --> 00:19:31,920 Speaker 1: his testimony? I think he helped himself. Um. I think 332 00:19:31,960 --> 00:19:34,920 Speaker 1: any time the defendant can get on the stand, especially 333 00:19:34,920 --> 00:19:38,080 Speaker 1: in a case like this where emotions are running high, um, 334 00:19:38,680 --> 00:19:41,679 Speaker 1: and they have been sort of portrayed in a certain 335 00:19:41,800 --> 00:19:44,960 Speaker 1: light um in the media by the prosecution. In this case, 336 00:19:45,200 --> 00:19:48,760 Speaker 1: you know, the prosecution was to paint him as a vigilante. Um. 337 00:19:48,840 --> 00:19:51,879 Speaker 1: And when he gets on the stand, I think you 338 00:19:52,080 --> 00:19:54,919 Speaker 1: see him as a person. At any time the defendant 339 00:19:54,960 --> 00:19:58,040 Speaker 1: takes the stand, you get the opportunity to hear from them. Uh, 340 00:19:58,240 --> 00:20:01,760 Speaker 1: see them as as a as a fellow human being 341 00:20:01,800 --> 00:20:04,280 Speaker 1: and not some caricature that's being made out by the 342 00:20:04,280 --> 00:20:07,640 Speaker 1: other side. Um. He showed emotion on the stand. Um. 343 00:20:08,040 --> 00:20:10,280 Speaker 1: You know, obviously he continued to say that he thought 344 00:20:10,320 --> 00:20:13,360 Speaker 1: he was justified in doing what he did. But UM, 345 00:20:13,640 --> 00:20:16,920 Speaker 1: the emotion that you could see when he took the stand, 346 00:20:16,920 --> 00:20:19,679 Speaker 1: when he was in answering questions and explaining what happened 347 00:20:19,720 --> 00:20:22,560 Speaker 1: that night, that can be powerful for a jury. And 348 00:20:22,600 --> 00:20:24,760 Speaker 1: can you know, really humanize him and see that he 349 00:20:24,800 --> 00:20:28,000 Speaker 1: does struggle with what happened that night on a on 350 00:20:28,080 --> 00:20:31,240 Speaker 1: a personal level, on a on an emotional level. Um. 351 00:20:32,119 --> 00:20:35,200 Speaker 1: And and I you know, again, it wasn't a surprise 352 00:20:35,240 --> 00:20:37,960 Speaker 1: what he said. I mean, we all pretty much knew 353 00:20:38,000 --> 00:20:39,480 Speaker 1: what he was going to say, and he said it. 354 00:20:39,960 --> 00:20:41,960 Speaker 1: But having him say it, and having him say it 355 00:20:42,119 --> 00:20:46,240 Speaker 1: in the way that he did, UM, showing some emotion 356 00:20:46,280 --> 00:20:50,200 Speaker 1: about it, and UM, you know, I think that was important. 357 00:20:50,240 --> 00:20:52,679 Speaker 1: And I and the danger with putting him on the 358 00:20:52,720 --> 00:20:56,160 Speaker 1: stand is that the prosecution can cross examine him. UM. 359 00:20:56,200 --> 00:20:59,520 Speaker 1: But I thought during the cross examination, once again, I 360 00:20:59,520 --> 00:21:02,040 Speaker 1: think he was a very well prepared witness and acquitted 361 00:21:02,080 --> 00:21:06,000 Speaker 1: himself fairly well. He took the opportunity when the prosecution 362 00:21:06,080 --> 00:21:10,040 Speaker 1: gave it to him on cross too tell his story. UM. 363 00:21:10,119 --> 00:21:12,840 Speaker 1: And I think in any case where they're where you're 364 00:21:12,880 --> 00:21:15,280 Speaker 1: asking the jury to kind of put themselves into the 365 00:21:15,320 --> 00:21:19,520 Speaker 1: perspective of the defendant, to view things through the eyes 366 00:21:19,560 --> 00:21:21,880 Speaker 1: of the defendant on that evening and make a decision 367 00:21:21,880 --> 00:21:26,320 Speaker 1: about whether or not their conduct was reasonable. UM. Hearing 368 00:21:26,359 --> 00:21:30,840 Speaker 1: directly from the defendant is really important. It struck me 369 00:21:30,920 --> 00:21:34,639 Speaker 1: that he said I didn't do anything wrong. I defended myself. 370 00:21:35,000 --> 00:21:38,280 Speaker 1: It seemed like there wasn't remorse. I think he's actually 371 00:21:38,280 --> 00:21:41,280 Speaker 1: in a difficult spot when he's on the stand about 372 00:21:41,320 --> 00:21:45,200 Speaker 1: that because UM and and and this will have come from, 373 00:21:45,240 --> 00:21:48,800 Speaker 1: you know, discussions with his defense lawyers, and I have 374 00:21:48,920 --> 00:21:52,199 Speaker 1: to say, I want to just caution listeners to UM. 375 00:21:52,240 --> 00:21:56,040 Speaker 1: It's perfectly normal and part of UM, you know, part 376 00:21:56,080 --> 00:21:59,639 Speaker 1: of trial strategy, UM, to prepare witnesses to get on 377 00:21:59,640 --> 00:22:02,520 Speaker 1: the stand. And I mean you could see Mr Grosscroiz 378 00:22:02,720 --> 00:22:06,200 Speaker 1: was also a very well prepared witness and often would 379 00:22:06,240 --> 00:22:08,119 Speaker 1: answer when he was asked questions. He would turn and 380 00:22:08,160 --> 00:22:11,000 Speaker 1: speak directly to the jury, which is something that you 381 00:22:11,080 --> 00:22:13,600 Speaker 1: encourage witnesses to do so. So I don't want to 382 00:22:13,600 --> 00:22:17,440 Speaker 1: suggest any lawyer was acting improperly, but I think I'm 383 00:22:17,520 --> 00:22:22,679 Speaker 1: I'm quite certain that when they were discussing Mr. Rittenhouse testimony, 384 00:22:22,720 --> 00:22:25,639 Speaker 1: I'm i'm certain that the issue of what level of 385 00:22:25,680 --> 00:22:30,080 Speaker 1: responsibility and remorse should he show on the stand, What 386 00:22:30,160 --> 00:22:33,280 Speaker 1: what should he say? Um And? I would expect his 387 00:22:33,400 --> 00:22:37,240 Speaker 1: lawyers probably counseled him that if he felt he was 388 00:22:37,320 --> 00:22:40,879 Speaker 1: justified in shooting, which that that has been his testimony, 389 00:22:40,880 --> 00:22:43,600 Speaker 1: that's been his position, he should hold to that position, 390 00:22:44,000 --> 00:22:47,720 Speaker 1: um and. And he should not say that he feels 391 00:22:47,720 --> 00:22:50,359 Speaker 1: bad or remorseful about what happened. He should stick to 392 00:22:51,480 --> 00:22:54,560 Speaker 1: maintaining his claim that he was justified in doing what 393 00:22:54,600 --> 00:22:57,840 Speaker 1: he did. Um And. So it's a difficult place for 394 00:22:57,920 --> 00:23:00,639 Speaker 1: him to be on the stand. Um. I can't imagine 395 00:23:01,520 --> 00:23:05,720 Speaker 1: any person who takes the life of another human being 396 00:23:05,760 --> 00:23:10,840 Speaker 1: not feeling some remorse for doing that, especially under these circumstances. 397 00:23:10,840 --> 00:23:14,400 Speaker 1: But whether or not, the lawyers sort of counseled him 398 00:23:14,400 --> 00:23:16,560 Speaker 1: that that was a good thing to say on the stand, 399 00:23:16,920 --> 00:23:20,239 Speaker 1: right because it it might lessen his claim that he 400 00:23:20,400 --> 00:23:24,639 Speaker 1: was justified. UM. I'm sure that entered into the calculation. 401 00:23:24,800 --> 00:23:27,200 Speaker 1: So so I think that's the sort of tight rope 402 00:23:27,240 --> 00:23:30,240 Speaker 1: he was trying to walk on the stand. It did. 403 00:23:30,480 --> 00:23:35,679 Speaker 1: Did the prosecutor accomplish anything during his cross examination? I mean, 404 00:23:35,720 --> 00:23:39,200 Speaker 1: it seemed like Written House was really well prepared by 405 00:23:39,200 --> 00:23:42,080 Speaker 1: his own counsel. Did the prosecutor make any headway at all? 406 00:23:42,840 --> 00:23:45,760 Speaker 1: Not very much. UM. I think part of it is 407 00:23:45,800 --> 00:23:50,680 Speaker 1: because Written House was very prepared. Um. You know, you know, 408 00:23:50,520 --> 00:23:53,159 Speaker 1: you know, you tell witnesses to to not get an 409 00:23:53,280 --> 00:23:58,439 Speaker 1: arguments or debates, you know with the person cross examining you, um, 410 00:23:58,480 --> 00:24:03,480 Speaker 1: you know, answer the questions put to you briefly, accurately. Um. 411 00:24:03,560 --> 00:24:06,600 Speaker 1: So he was definitely a witness who was well prepared 412 00:24:06,800 --> 00:24:10,080 Speaker 1: to be subjected to cross examination. Uh. If there was 413 00:24:10,160 --> 00:24:16,080 Speaker 1: one thing that the prosecution perhaps accomplished um during cross examination, 414 00:24:16,280 --> 00:24:19,000 Speaker 1: it was to get him to admit that he had 415 00:24:19,040 --> 00:24:22,240 Speaker 1: that gun illegally, that he had um gotten someone to 416 00:24:22,280 --> 00:24:25,199 Speaker 1: purchase for him because he knew he wasn't allowed to 417 00:24:25,200 --> 00:24:27,640 Speaker 1: have it. UM. But I think again, I think that's 418 00:24:27,680 --> 00:24:29,679 Speaker 1: part of Ultimately it's going to be part of the 419 00:24:29,720 --> 00:24:34,119 Speaker 1: defense strategy to concede that point and say, yes, he 420 00:24:34,240 --> 00:24:38,400 Speaker 1: was guilty of the misdemeanor of going armed while under eighteen, 421 00:24:39,119 --> 00:24:41,679 Speaker 1: but he was not guilty of the other charges that 422 00:24:41,760 --> 00:24:44,800 Speaker 1: he's he's been accused of. Does it seem as if 423 00:24:44,800 --> 00:24:48,400 Speaker 1: a focus of the jury will be on looking at 424 00:24:48,400 --> 00:24:54,199 Speaker 1: those videos and analyzing what went on. Yes, And I 425 00:24:54,240 --> 00:24:57,280 Speaker 1: think there's an interesting point that should be made here 426 00:24:57,560 --> 00:25:01,359 Speaker 1: is that the lawyers throughout the trial asked people on 427 00:25:01,480 --> 00:25:07,520 Speaker 1: the stand about the videos with some regularity, Like there 428 00:25:07,560 --> 00:25:10,639 Speaker 1: was a fair amount of questioning where the defense and 429 00:25:10,680 --> 00:25:14,560 Speaker 1: the prosecution would play a video and ask the witness, well, 430 00:25:14,680 --> 00:25:17,199 Speaker 1: what did you hear on that video or what do 431 00:25:17,280 --> 00:25:21,359 Speaker 1: you see on the video? I think people should should 432 00:25:21,400 --> 00:25:24,800 Speaker 1: keep in mind that those videos are in evidence, and 433 00:25:24,840 --> 00:25:27,840 Speaker 1: what that essentially means is that when the jury goes 434 00:25:27,880 --> 00:25:31,760 Speaker 1: back to deliberate, they can watch the videos themselves. They 435 00:25:31,760 --> 00:25:33,760 Speaker 1: can watch the videos as many times as they want, 436 00:25:34,119 --> 00:25:38,000 Speaker 1: They can fast forward and freeze frame and and listen 437 00:25:38,080 --> 00:25:41,360 Speaker 1: to what people are saying on those videos, and ultimately, 438 00:25:42,000 --> 00:25:46,639 Speaker 1: whatever the witnesses said they think the videos show the 439 00:25:46,800 --> 00:25:50,320 Speaker 1: jury is going to watch and listen to the video 440 00:25:50,480 --> 00:25:53,639 Speaker 1: and watch the video listening audio, and they're going to 441 00:25:53,760 --> 00:25:58,200 Speaker 1: make the decision for themselves about what it shows. UM. 442 00:25:58,240 --> 00:26:00,800 Speaker 1: And and again an interesting point that I think was 443 00:26:00,840 --> 00:26:05,960 Speaker 1: made UM recently in the trial by the the expert 444 00:26:06,000 --> 00:26:09,000 Speaker 1: called by the defense who who uses who analyzes use 445 00:26:09,040 --> 00:26:11,760 Speaker 1: of force and uses video. He sort of cautions the 446 00:26:11,840 --> 00:26:17,200 Speaker 1: jury to say, look, we're slowing this down second by second, Um, 447 00:26:17,240 --> 00:26:20,960 Speaker 1: but that's not how people experienced or perceived the events 448 00:26:21,040 --> 00:26:24,359 Speaker 1: because we can't we can't stop the video in real 449 00:26:24,400 --> 00:26:29,359 Speaker 1: life and make a calculated decision about whether use of 450 00:26:29,440 --> 00:26:32,639 Speaker 1: force should be used or not. So so yeah, I 451 00:26:32,680 --> 00:26:36,040 Speaker 1: think I think the video will be a critical part 452 00:26:36,359 --> 00:26:40,840 Speaker 1: of the jury's analysis here. And also not just in 453 00:26:40,920 --> 00:26:43,320 Speaker 1: the you know, checking frame by frame what happened, but 454 00:26:43,400 --> 00:26:46,720 Speaker 1: also in playing it in real time and trying to 455 00:26:46,720 --> 00:26:50,359 Speaker 1: get a sense of what the environment on the street 456 00:26:50,680 --> 00:26:54,199 Speaker 1: of Kenosho, what it was like to be there that evening. 457 00:26:55,520 --> 00:26:59,800 Speaker 1: Once he raises self defense, the prosecution has to disprove 458 00:26:59,840 --> 00:27:04,640 Speaker 1: the at beyond a reasonable doubt. Yes, this is something 459 00:27:04,680 --> 00:27:08,640 Speaker 1: that UM is. It's not unique to Wisconsin law. Other 460 00:27:08,680 --> 00:27:12,920 Speaker 1: states have this approach as well, but um. Oftentimes, if 461 00:27:12,920 --> 00:27:17,800 Speaker 1: a defendant raises a type of affirmative defense, which self defenses, 462 00:27:17,840 --> 00:27:23,639 Speaker 1: so so essentially an affirmative defense is the defendant is saying, yes, 463 00:27:24,119 --> 00:27:27,920 Speaker 1: I did the acts that would normally be considered criminal, 464 00:27:28,040 --> 00:27:32,320 Speaker 1: I shot the person, but I have an affirmative defense. 465 00:27:32,359 --> 00:27:36,000 Speaker 1: I'm putting forth evidence to suggest that I did it, 466 00:27:36,080 --> 00:27:38,960 Speaker 1: but only did it because I was acting in self defense. 467 00:27:40,000 --> 00:27:43,280 Speaker 1: Once the defendant does that, Once the defendant, under Wisconsin 468 00:27:43,359 --> 00:27:47,679 Speaker 1: law and the law of many other states, put self 469 00:27:47,680 --> 00:27:51,280 Speaker 1: defense at issue, once there's some evidence that the defendant 470 00:27:51,359 --> 00:27:55,359 Speaker 1: may have been acting in self defense, the prosecution now 471 00:27:55,520 --> 00:28:00,480 Speaker 1: has to disprove that beyond a reasonable doubt. So there 472 00:28:00,600 --> 00:28:03,080 Speaker 1: is what we would call a burden of production on 473 00:28:03,119 --> 00:28:05,840 Speaker 1: the defense. They have to present evidence that they were 474 00:28:05,880 --> 00:28:09,200 Speaker 1: acting in self defense. But once they do that, now 475 00:28:09,280 --> 00:28:12,120 Speaker 1: the prosecution has to disprove it beyond a reasonable doubt. 476 00:28:12,119 --> 00:28:15,520 Speaker 1: And frankly, in this particular case, I think that's going 477 00:28:15,560 --> 00:28:20,240 Speaker 1: to be challenging for the prosecution to do that. Explain 478 00:28:20,280 --> 00:28:27,879 Speaker 1: why you think that, well, I mean, just the the 479 00:28:27,880 --> 00:28:31,640 Speaker 1: the allegation or the the the evidence that Mr Rittenhouse 480 00:28:31,720 --> 00:28:35,200 Speaker 1: is presented and even the prosecution has presented suggests that 481 00:28:36,000 --> 00:28:39,360 Speaker 1: at various times throughout the evening when he did shoot 482 00:28:39,480 --> 00:28:43,720 Speaker 1: at people, UM, that the people were moving toward him 483 00:28:44,000 --> 00:28:46,720 Speaker 1: or attempting to strike him, or even in the case 484 00:28:46,760 --> 00:28:51,040 Speaker 1: of Mr Grosscroyd's was actually armed and by his own admission, 485 00:28:51,120 --> 00:28:56,360 Speaker 1: pointing a gun at him. UM. Under those circumstances, the 486 00:28:56,400 --> 00:28:59,360 Speaker 1: prosecution is going to be required to prove beyond a 487 00:28:59,400 --> 00:29:02,600 Speaker 1: reasonable out that he wasn't acting in self defense. He 488 00:29:02,640 --> 00:29:05,080 Speaker 1: doesn't have to prove beyond a reasonable doubt that he 489 00:29:05,400 --> 00:29:08,920 Speaker 1: was UM. But it's it's gonna be challenging for the 490 00:29:08,960 --> 00:29:14,240 Speaker 1: prosecution to do that because especially with not the initial 491 00:29:14,280 --> 00:29:18,600 Speaker 1: shooting necessarily with Mr Rosenbaum, but the subsequent shootings that 492 00:29:18,680 --> 00:29:23,880 Speaker 1: occurred that night. UM. Even the prosecution's witnesses Mr particularly 493 00:29:23,960 --> 00:29:27,520 Speaker 1: Mr gross Froyd, said I thought he was in danger. 494 00:29:27,680 --> 00:29:31,600 Speaker 1: I thought this group of people was pursuing him, trying 495 00:29:31,640 --> 00:29:35,160 Speaker 1: to assault him at times, and his own testimony said 496 00:29:35,160 --> 00:29:37,880 Speaker 1: I moved towards him because I thought he was going 497 00:29:37,920 --> 00:29:42,360 Speaker 1: to get hurt. So if you have a prosecution witness 498 00:29:42,400 --> 00:29:45,640 Speaker 1: who was shot by him making statements on the stand 499 00:29:45,680 --> 00:29:49,800 Speaker 1: to say I feared that he was in danger, and 500 00:29:49,920 --> 00:29:53,280 Speaker 1: that prosecution witness also says, I was carrying a concealed 501 00:29:53,280 --> 00:29:55,320 Speaker 1: weapon and began to point it at him when he 502 00:29:55,400 --> 00:29:58,360 Speaker 1: shot me. It's I think it's going to be very 503 00:29:58,360 --> 00:30:02,520 Speaker 1: difficult for the prosecution to meet that burden of disproving 504 00:30:02,600 --> 00:30:06,000 Speaker 1: that he had a reasonable belief and was acting in 505 00:30:06,080 --> 00:30:10,080 Speaker 1: self defense at those moments when he fired. Thanks for 506 00:30:10,120 --> 00:30:12,760 Speaker 1: being on the show. That's John Gross, the professor at 507 00:30:12,800 --> 00:30:15,280 Speaker 1: the University of Wisconsin Law School and director of the 508 00:30:15,320 --> 00:30:22,959 Speaker 1: Public Defender Project. DC. Federal Judge Tanya Chukkin denied former 509 00:30:23,000 --> 00:30:26,840 Speaker 1: President Trump's request for an injunction to prevent the National 510 00:30:27,040 --> 00:30:31,720 Speaker 1: Archives from releasing documents to the US House panel investigating 511 00:30:31,760 --> 00:30:36,440 Speaker 1: the January six Capital Riot. Typically, executive privileges reserved for 512 00:30:36,480 --> 00:30:39,280 Speaker 1: the current occupant of the White House, but in this case, 513 00:30:39,320 --> 00:30:43,000 Speaker 1: President Joe Biden has waived it. Trump's lawyers argued that 514 00:30:43,040 --> 00:30:47,840 Speaker 1: a former president should maintain some ability to invoke executive privilege, 515 00:30:48,520 --> 00:30:51,680 Speaker 1: joining me as former federal prosecutor Robert Mintz, a partner 516 00:30:51,800 --> 00:30:56,120 Speaker 1: mcarter in English, Bob tell us about Trump's claim here. 517 00:30:56,880 --> 00:31:00,480 Speaker 1: Former President Trump was seeking to block the release of 518 00:31:00,560 --> 00:31:03,760 Speaker 1: documents thought by the U S House panel investigating the 519 00:31:03,880 --> 00:31:07,840 Speaker 1: January six Capital Riot and the President's legal team was 520 00:31:07,960 --> 00:31:12,240 Speaker 1: relying essentially on the doctrine of executive privilege, saying that 521 00:31:12,360 --> 00:31:15,440 Speaker 1: although he was no longer the president, he still had 522 00:31:15,440 --> 00:31:20,360 Speaker 1: the ability to assert executive privilege over notes and internal 523 00:31:20,640 --> 00:31:24,600 Speaker 1: workings within the White House and among his staff related 524 00:31:24,640 --> 00:31:28,960 Speaker 1: to events surrounding the January six riots. A DC federal 525 00:31:29,080 --> 00:31:33,480 Speaker 1: judge denied Trump's request for an injunction. Tell us why 526 00:31:33,640 --> 00:31:37,600 Speaker 1: the disrecorded judge rejected the Trump argument that he's entitled 527 00:31:37,600 --> 00:31:41,240 Speaker 1: to keep these records secret from Congress. The judge said 528 00:31:41,280 --> 00:31:44,720 Speaker 1: that the executive privilege that the Trump legal team relied 529 00:31:44,760 --> 00:31:49,200 Speaker 1: on exists to protect the executive branch, not an individual. 530 00:31:49,520 --> 00:31:52,160 Speaker 1: The judge was very explicit and said that the incumbent 531 00:31:52,200 --> 00:31:56,040 Speaker 1: president in this case, President Biden, and not the former president, 532 00:31:56,400 --> 00:31:59,080 Speaker 1: is in the best position to evaluate the long term 533 00:31:59,120 --> 00:32:02,040 Speaker 1: interest of the eecutive branch. In this case, we had 534 00:32:02,040 --> 00:32:05,280 Speaker 1: a situation where former President Trump was seeking to invoke 535 00:32:05,360 --> 00:32:09,840 Speaker 1: executive privilege, but the current president, President Biden, had reviewed 536 00:32:10,120 --> 00:32:13,840 Speaker 1: the same information and decided to waive the privilege on 537 00:32:13,880 --> 00:32:16,840 Speaker 1: behalf of the executive branch. The judge came down on 538 00:32:16,880 --> 00:32:20,240 Speaker 1: the side of the sitting president rather than the former president. 539 00:32:20,400 --> 00:32:22,960 Speaker 1: That said that that information had to be turned over. 540 00:32:23,560 --> 00:32:27,320 Speaker 1: She said, presidents are not kings and plaintiff is not president. 541 00:32:28,000 --> 00:32:30,520 Speaker 1: Some of the records that Trump is trying to keep 542 00:32:30,560 --> 00:32:35,840 Speaker 1: from the Select Committee include things like the daily presidential diaries, schedules, 543 00:32:35,960 --> 00:32:40,960 Speaker 1: appointments of White House visitors, call logs, drafts of speech, 544 00:32:41,040 --> 00:32:44,680 Speaker 1: or correspondence related to the insurrection. Some of that seems 545 00:32:44,720 --> 00:32:48,000 Speaker 1: to be not in the realm of executive privilege, like 546 00:32:48,320 --> 00:32:53,320 Speaker 1: white House visitors or presidential schedule call loggs. Even if 547 00:32:53,360 --> 00:32:56,120 Speaker 1: you thought there was executive privilege, it doesn't seem like 548 00:32:56,160 --> 00:32:59,160 Speaker 1: those would be part of it. Well, that's a good point, 549 00:32:59,240 --> 00:33:02,760 Speaker 1: because let's remember what executive privilege is and how it's 550 00:33:02,800 --> 00:33:06,840 Speaker 1: supposed to work. The doctrine of executive privilege was really 551 00:33:06,920 --> 00:33:11,240 Speaker 1: created in order to protect the internal communications within the 552 00:33:11,240 --> 00:33:14,800 Speaker 1: White House and with the President of United States. Prior 553 00:33:14,840 --> 00:33:18,640 Speaker 1: court rulings have established that this doctrine is a balancing test. 554 00:33:18,680 --> 00:33:21,560 Speaker 1: In other words, it's a qualified privilege, it's not an 555 00:33:21,560 --> 00:33:25,760 Speaker 1: absolute privilege. The argument in favor of privilege is that 556 00:33:25,800 --> 00:33:30,160 Speaker 1: the president needs to be given candid advice in order 557 00:33:30,200 --> 00:33:33,280 Speaker 1: to be effective. In other words, in order to be effective, 558 00:33:33,320 --> 00:33:35,280 Speaker 1: a president needs to be able to consult with his 559 00:33:35,360 --> 00:33:38,360 Speaker 1: advisors and to get the right kind of of advice, 560 00:33:38,400 --> 00:33:40,320 Speaker 1: and there has to be some level of confidence that 561 00:33:40,320 --> 00:33:44,080 Speaker 1: that advice will remain confidential or the fears that people 562 00:33:44,080 --> 00:33:47,800 Speaker 1: will withhold that candid advice for fear that will become 563 00:33:47,840 --> 00:33:50,760 Speaker 1: public someday. So in an instance where a president is 564 00:33:50,800 --> 00:33:54,720 Speaker 1: facing a particularly difficult situation, it's not unusual for his 565 00:33:54,840 --> 00:33:58,360 Speaker 1: aids to give him several options as to what he 566 00:33:58,480 --> 00:34:01,720 Speaker 1: might do, and some of the those options may be unpopular. 567 00:34:02,040 --> 00:34:06,160 Speaker 1: So in order to protect that candidate advice, the executive 568 00:34:06,200 --> 00:34:10,760 Speaker 1: privilege says that that information should remain private and should 569 00:34:10,760 --> 00:34:13,719 Speaker 1: not be disclosed to the public. The biggest argument on 570 00:34:13,760 --> 00:34:16,319 Speaker 1: the other side of executive privilege is that you don't 571 00:34:16,360 --> 00:34:20,320 Speaker 1: want to president and his aids to use executive privilege 572 00:34:20,360 --> 00:34:23,600 Speaker 1: to hide wrongdoing. In other words, if the reason for 573 00:34:23,760 --> 00:34:26,680 Speaker 1: refusing to turn over the information is not the need 574 00:34:26,760 --> 00:34:30,359 Speaker 1: to protect confidential communications with the president, but in order 575 00:34:30,400 --> 00:34:34,080 Speaker 1: to hide some kind of wrongdoing at the highest level 576 00:34:34,160 --> 00:34:38,000 Speaker 1: of government, that is a reason to overrule executive privilege 577 00:34:38,000 --> 00:34:40,280 Speaker 1: and to make sure that information is available to the public. 578 00:34:41,040 --> 00:34:43,960 Speaker 1: Trump is going to appeal this to the d C Circuit. 579 00:34:44,360 --> 00:34:47,840 Speaker 1: The panel there could reverse the judge's decision or affirm it. 580 00:34:47,840 --> 00:34:51,600 Speaker 1: It could go to an ombank panel or even possibly 581 00:34:51,680 --> 00:34:55,239 Speaker 1: to the Supreme Court. So the question is time, how 582 00:34:55,320 --> 00:34:59,319 Speaker 1: much time before the committee actually gets the documents. Well, 583 00:34:59,320 --> 00:35:02,120 Speaker 1: as it stands right now, these records are with the 584 00:35:02,200 --> 00:35:05,440 Speaker 1: National Archives, and the National Archives has indicated that they 585 00:35:05,440 --> 00:35:08,040 Speaker 1: will be turning over those records to the committee as 586 00:35:08,080 --> 00:35:12,040 Speaker 1: of Friday, barring some kind of court ruling that tells 587 00:35:12,080 --> 00:35:14,520 Speaker 1: them not to do that. So in this case, the 588 00:35:14,600 --> 00:35:17,680 Speaker 1: question is will you Appeals Court step in or protected 589 00:35:17,760 --> 00:35:20,760 Speaker 1: the U. S. Supreme Court to slow this process down? 590 00:35:20,960 --> 00:35:23,319 Speaker 1: And the reason that's so important is that if it's 591 00:35:23,360 --> 00:35:27,360 Speaker 1: slowed down enough to get past the next round of elections, 592 00:35:27,600 --> 00:35:30,440 Speaker 1: and it's possible that the House of Representatives will be 593 00:35:30,480 --> 00:35:34,839 Speaker 1: controlled by the Republicans, this committee could be disbanded and 594 00:35:34,960 --> 00:35:38,880 Speaker 1: ultimately this information could be never made public. In addition 595 00:35:38,920 --> 00:35:44,319 Speaker 1: to executive privilege, Trump made another argument that the judge rejected. 596 00:35:44,480 --> 00:35:47,760 Speaker 1: Tell us about that. One other argument that Trump legal 597 00:35:47,760 --> 00:35:51,480 Speaker 1: team made in order to oppose turning over this information 598 00:35:51,560 --> 00:35:55,160 Speaker 1: was to suggest that the information being sought by Congress 599 00:35:55,480 --> 00:35:59,600 Speaker 1: was not for a legitimate legislative purpose. Ultimately, Congress can 600 00:35:59,600 --> 00:36:03,480 Speaker 1: suppina information, but they can't really do their own investigations 601 00:36:03,560 --> 00:36:07,480 Speaker 1: unless it's tied to some type of legislation. In this case, 602 00:36:07,560 --> 00:36:10,160 Speaker 1: the court found that the House had every interest in 603 00:36:10,200 --> 00:36:14,719 Speaker 1: examining all aspects of January six to consider legislation to 604 00:36:14,800 --> 00:36:18,080 Speaker 1: prevent six events from ever occurring again. So she really 605 00:36:18,320 --> 00:36:21,120 Speaker 1: dismissed the Trump argument that this was a witch hunt, 606 00:36:21,160 --> 00:36:23,920 Speaker 1: that this was being done for political purposes, and she 607 00:36:23,960 --> 00:36:28,080 Speaker 1: agreed with Congress that the information sought was tied to 608 00:36:28,120 --> 00:36:31,880 Speaker 1: a legitimate legislative purpose and therefore the subpoenas, although they 609 00:36:31,880 --> 00:36:37,440 Speaker 1: were quite broad, were enforceable. Bob. Typically executive privileges reserved 610 00:36:37,480 --> 00:36:39,839 Speaker 1: for the current occupant of the White House, but in 611 00:36:39,840 --> 00:36:43,759 Speaker 1: this case, so in the past, how have other presidents 612 00:36:43,800 --> 00:36:47,520 Speaker 1: dealt with the issue of executive privilege. Well, first, let's 613 00:36:47,560 --> 00:36:51,080 Speaker 1: recognize that the information here that we're fighting about is 614 00:36:51,120 --> 00:36:54,200 Speaker 1: not in the possession of the current president or the 615 00:36:54,239 --> 00:36:58,080 Speaker 1: past president. This information is being stored by the National Archives. 616 00:36:58,320 --> 00:37:00,359 Speaker 1: And in the past what has happened is there has 617 00:37:00,360 --> 00:37:04,520 Speaker 1: been a request that would otherwise potentially be privileged regarding 618 00:37:04,520 --> 00:37:08,880 Speaker 1: a prior presidency. Representative of the current president would reach 619 00:37:08,920 --> 00:37:11,640 Speaker 1: out to the prior president to consult with them about 620 00:37:11,640 --> 00:37:14,440 Speaker 1: whether or not there should be an assertion of privilege, 621 00:37:14,640 --> 00:37:17,200 Speaker 1: but ultimately the decision as to whether or not to 622 00:37:17,200 --> 00:37:20,200 Speaker 1: assert that privilege would be decided by the sitting president. 623 00:37:20,520 --> 00:37:23,160 Speaker 1: In the past, that is the way these issues have 624 00:37:23,200 --> 00:37:25,640 Speaker 1: been resolved, and they have not made it to the courts, 625 00:37:25,840 --> 00:37:28,239 Speaker 1: which is why there's not a lot of law on 626 00:37:28,360 --> 00:37:32,719 Speaker 1: this issue of a past president asserting executive privilege as 627 00:37:32,719 --> 00:37:35,680 Speaker 1: the documents that the current president believes ought to be 628 00:37:35,719 --> 00:37:39,600 Speaker 1: turned over to the public. The most famous case about 629 00:37:39,640 --> 00:37:44,360 Speaker 1: executive privilege is, of course, the case involving President Richard Nixon. 630 00:37:44,680 --> 00:37:48,520 Speaker 1: The idea that presidents should keep some government information secret 631 00:37:48,640 --> 00:37:52,080 Speaker 1: is nothing new. It actually dates back to George Washington, 632 00:37:52,400 --> 00:37:55,080 Speaker 1: but it wasn't really until the eisenhowerd administration that the 633 00:37:55,200 --> 00:37:58,760 Speaker 1: term executive privilege was coined, and of course it first 634 00:37:58,800 --> 00:38:01,640 Speaker 1: made its way into the work in nineteen seventy three 635 00:38:01,760 --> 00:38:06,000 Speaker 1: involving the famous Richard Nixon Watergate tape case. In that case, 636 00:38:06,040 --> 00:38:09,759 Speaker 1: President Nixon was trying to shield the tapes that his 637 00:38:09,840 --> 00:38:15,200 Speaker 1: office had recorded from Congress by claiming executive privilege. As 638 00:38:15,239 --> 00:38:17,879 Speaker 1: we all know, the court ruled against President Nixon and 639 00:38:17,920 --> 00:38:20,879 Speaker 1: he was required to turn over those tapes. But there 640 00:38:21,000 --> 00:38:24,040 Speaker 1: is actually a Supreme Court case, again involving former President 641 00:38:24,120 --> 00:38:27,680 Speaker 1: Nixon that does stand for the proposition and a former 642 00:38:27,719 --> 00:38:32,399 Speaker 1: president has some ability to assert executive privilege even though 643 00:38:32,440 --> 00:38:34,680 Speaker 1: they are no longer in office. That was a case 644 00:38:34,719 --> 00:38:38,759 Speaker 1: in which the Government Services Administration was supposed to take 645 00:38:38,800 --> 00:38:41,840 Speaker 1: custody of Nixon's papers and tapes. Now, in that case, 646 00:38:42,040 --> 00:38:45,200 Speaker 1: the Supreme Court ultimately ruled against Nixon has said that 647 00:38:45,239 --> 00:38:47,800 Speaker 1: the information had to be turned over, But the Supreme 648 00:38:47,840 --> 00:38:51,760 Speaker 1: Court did say that a former president has some limited 649 00:38:51,880 --> 00:38:56,080 Speaker 1: right to assert executive privilege in certain circumstances. There have 650 00:38:56,200 --> 00:38:58,920 Speaker 1: not been other cases since them, and so the scope 651 00:38:58,960 --> 00:39:01,880 Speaker 1: and the full impact of that court decision has not 652 00:39:02,000 --> 00:39:04,360 Speaker 1: yet been tested. But that was the case that the 653 00:39:04,400 --> 00:39:07,600 Speaker 1: Trump team relied upon and has continued to rely upon 654 00:39:07,880 --> 00:39:10,800 Speaker 1: in asserting the right of a former president to astirt 655 00:39:10,880 --> 00:39:14,280 Speaker 1: executive privilege even in the face of a sitting president 656 00:39:14,520 --> 00:39:18,600 Speaker 1: deciding that the information ought to be disclosed. The January 657 00:39:18,680 --> 00:39:21,480 Speaker 1: six House Committee, which is made up of seven Democrats 658 00:39:21,480 --> 00:39:26,759 Speaker 1: and two Republicans, began investigating the Capital Riot over the summer. 659 00:39:26,840 --> 00:39:29,440 Speaker 1: In addition to seeking records from Trump, the panel has 660 00:39:29,480 --> 00:39:34,120 Speaker 1: subpoena documents and testimony from former Trump advisors, and the 661 00:39:34,160 --> 00:39:38,400 Speaker 1: House Committee issued ten new subpoenas on Tuesday, closing in 662 00:39:38,480 --> 00:39:42,359 Speaker 1: on Trump's inner circle at the White House. Now, other 663 00:39:42,440 --> 00:39:46,440 Speaker 1: members of the Trump administration, like former advisor Steve Bannon 664 00:39:46,840 --> 00:39:50,960 Speaker 1: and former Joice Department official Jeffrey Clark, have refused to 665 00:39:51,000 --> 00:39:56,520 Speaker 1: comply with Committee subpoenas, but Democratic Congressman Adam Schiff, who 666 00:39:56,560 --> 00:39:59,200 Speaker 1: was a member of the committee, said he expects these 667 00:39:59,280 --> 00:40:03,040 Speaker 1: latest witness is to comply with the subpoenas. We expect 668 00:40:03,120 --> 00:40:05,120 Speaker 1: them to do their lawful duty, which means they've been 669 00:40:05,120 --> 00:40:07,640 Speaker 1: given a subpoena, they're compelled to appear. We expect them 670 00:40:07,640 --> 00:40:12,840 Speaker 1: to compare, appear and provide their documents. It's our expectation 671 00:40:12,920 --> 00:40:16,759 Speaker 1: that the Justice Department will prosecute those who do not 672 00:40:16,960 --> 00:40:20,920 Speaker 1: comply with lawful subpoenas um and I think that will 673 00:40:20,960 --> 00:40:23,560 Speaker 1: send a powerful message to others that you know, the 674 00:40:23,600 --> 00:40:26,280 Speaker 1: rule of law is back. Of course, the Johnstone Department 675 00:40:26,280 --> 00:40:29,520 Speaker 1: has not decided whether or not to go forward with 676 00:40:29,600 --> 00:40:33,320 Speaker 1: criminal contempt proceedings for Bannon. Bob tell us about the 677 00:40:33,400 --> 00:40:37,360 Speaker 1: latest subpoenas, So the committee has recently subpoena ten additional 678 00:40:37,400 --> 00:40:42,200 Speaker 1: Trump administration officials, including former senior presidential advisor Stephen Miller 679 00:40:42,600 --> 00:40:46,160 Speaker 1: for a White House Press Secretary Kaylee MCINNINNY. Other subpoenas 680 00:40:46,200 --> 00:40:49,880 Speaker 1: included President Trump's former personal assistant. So they're casting a 681 00:40:50,000 --> 00:40:54,239 Speaker 1: very broad net here trying to get information from all 682 00:40:54,280 --> 00:40:57,280 Speaker 1: of the president's aids who were involved with the president 683 00:40:57,600 --> 00:41:00,960 Speaker 1: during January six, including a people who may have had 684 00:41:01,000 --> 00:41:05,040 Speaker 1: information with others outside the White House, particularly those who 685 00:41:05,040 --> 00:41:08,520 Speaker 1: may have involved in organizing the Stop the Steel rally 686 00:41:08,600 --> 00:41:11,759 Speaker 1: that led to the riots at the Capitol on January six. 687 00:41:12,760 --> 00:41:16,840 Speaker 1: So some have already said, like former New York City 688 00:41:17,000 --> 00:41:20,879 Speaker 1: Police Commissioner Bernie Carrick has already said, I'm not going 689 00:41:20,960 --> 00:41:24,440 Speaker 1: to comply with the subpoena. What can the committee do? 690 00:41:25,040 --> 00:41:28,800 Speaker 1: Those who are refusing to cooperate are relying on President 691 00:41:28,800 --> 00:41:32,160 Speaker 1: Trump's assertion of executive privilege as a basis for not 692 00:41:32,239 --> 00:41:35,239 Speaker 1: cooperating with the committee, So that decision really has to 693 00:41:35,280 --> 00:41:38,960 Speaker 1: be resolved before those witnesses can be forced to testify it. 694 00:41:39,280 --> 00:41:42,719 Speaker 1: But in the meantime, former presidential aid Steve Batten has 695 00:41:42,719 --> 00:41:45,040 Speaker 1: already been found in contempt by Congress for philling to 696 00:41:45,080 --> 00:41:47,960 Speaker 1: comply with its demand that he testify and turnover documents, 697 00:41:48,120 --> 00:41:50,680 Speaker 1: and the House has forwarded that action over to the 698 00:41:50,760 --> 00:41:54,560 Speaker 1: Justice Department for potential criminal prosecution. That is something that 699 00:41:54,640 --> 00:41:57,160 Speaker 1: has rarely been done in the past, and Attorney General 700 00:41:57,239 --> 00:42:00,160 Speaker 1: Merrick Garland has not indicated whether or not he is 701 00:42:00,200 --> 00:42:03,040 Speaker 1: going to use the Department of Justice to pursue criminal 702 00:42:03,120 --> 00:42:07,000 Speaker 1: charges against Steve Bannon and others who are refusing to cooperate. 703 00:42:07,360 --> 00:42:10,760 Speaker 1: Congress is now just waiting for Merrick Garland to decide 704 00:42:10,760 --> 00:42:12,360 Speaker 1: whether or not he is going to proceed with the 705 00:42:12,400 --> 00:42:15,720 Speaker 1: criminal prosecution of Steve Bannon. Thanks for being on the show, Bob. 706 00:42:15,960 --> 00:42:19,840 Speaker 1: That's former federal prosecutor Robert Mints, a partner mcarter and English. 707 00:42:20,239 --> 00:42:22,520 Speaker 1: And that's it for this edition of The Bloomberg Law Show. 708 00:42:22,880 --> 00:42:25,160 Speaker 1: Remember you can always get the latest legal news on 709 00:42:25,239 --> 00:42:29,520 Speaker 1: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, 710 00:42:29,760 --> 00:42:34,800 Speaker 1: and at www dot Bloomberg dot com, slash podcast Slash Law, 711 00:42:35,200 --> 00:42:37,800 Speaker 1: and remember to tune into The Bloomberg Law Show every 712 00:42:37,840 --> 00:42:41,279 Speaker 1: week night at ten pm Wall Street Time. I'm June 713 00:42:41,280 --> 00:42:43,480 Speaker 1: Grosso and you're listening to Bloomberg