Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio.
Speaker 1: Fans and members of the Free Brittany movement will be
Speaker 1: outside the Los Angeles Courthouse tomorrow where Brittney spears will
Speaker 1: find out whether a judge will free her from the
Speaker 1: conservatorship that has controlled her life and money for nearly
Speaker 1: fourteen years. She already ousted her father from the legal
Speaker 1: arrangement in September, and at a hearing tomorrow a judge
Speaker 1: could end it all together. Joining me is Harry Nelson,
Speaker 1: the founder of Nelson Hardeman. Harry tell us why she
Speaker 1: was put under a conservatorship in the first place. The
Speaker 1: routes of the conservatives ship started back in two thousand
Speaker 1: and eight. There were two circumstances in which, uh, you know,
Speaker 1: Brittany was hospitalized. In one case, she had locked herself
Speaker 1: into a room with her son, Um and she was
Speaker 1: refusing to release him. She was in the middle of
Speaker 1: a dispute, a custody dispute over her children with her
Speaker 1: former husband, Kevin Federline, and there were weren't worrying signs
Speaker 1: about her mental health. There were a number of reports
Speaker 1: that she was suffering from bipolar and there were other
Speaker 1: kind of signs in her financial life that she was
Speaker 1: making very erratic decisions on buying and selling properties. So
Speaker 1: at the time thirteen years ago, there was good reason
Speaker 1: for concern and that was the basis upon which Britney's father,
Speaker 1: Jamie you know, petitioned the court to appoint him as
Speaker 1: a conservator on her behalf. Well, what kind of um
Speaker 1: determination does a court have to make though to put
Speaker 1: someone under conservatorship, which can be so extensive, What kind
Speaker 1: of a finding did the judge have to make? There
Speaker 1: are really are two kinds of conservatorship there. It's really
Speaker 1: the basic concept is that a conservator is a guardian,
Speaker 1: and so there's a conservatorship of the person, and that
Speaker 1: generally is when you demonstrate to a court that someone
Speaker 1: is not able to properly provide for their own personal needs.
Speaker 1: That means that for their own health and medical well being,
Speaker 1: for food, for clothing, for shelter. The other kind of
Speaker 1: conservatorship as a conservatorship of the estate, and that is
Speaker 1: for somebody who is not who is not able. It
Speaker 1: requires a showing that a person is not able to
Speaker 1: manage their own financial resources. Um. You'll often see that
Speaker 1: in the case of people who have compulsive spending issues
Speaker 1: or cannot resist fraud or undue influence from others and
Speaker 1: maybe vulnerable to abuse. So in this case, Jamie Spears
Speaker 1: thought both basically saying that Brittany was unable to kind
Speaker 1: of take care of her own medical needs and particularly
Speaker 1: her mental health needs, and also that she wasn't able
Speaker 1: to safely manage her own financial resources. And he was
Speaker 1: able to persuade a court back then in two thousand
Speaker 1: eight too, to appoint him as a conservator. Some of
Speaker 1: the things he did would strike most people as out rate.
Speaker 1: Just she said that he compelled her to take lithium
Speaker 1: against her will. He insisted does she keep an i
Speaker 1: U D for birth control? Required to undertake performances when
Speaker 1: she didn't want to. Are those kinds of decisions normal
Speaker 1: in a conservatorship? I would say that the level of control,
Speaker 1: both on her medical decision making and the business business
Speaker 1: we were disturbing and very atypical. It is not an
Speaker 1: uncommon issue for UH for people to be required to
Speaker 1: take medication you know when that medication is life saving.
Speaker 1: But in this case, the suggestion that she UH that
Speaker 1: you know that that that that that has come up
Speaker 1: that Brittany was was forced to take lithium against her
Speaker 1: will so that she could tour UH and perform, you know,
Speaker 1: in concerts around the world is disturbing and atypical that
Speaker 1: that sounds like a medication not for her essential health needs,
Speaker 1: but really for her father's business interest in keeping her working.
Speaker 1: And the allegations regarding the hi u D. Likewise, there
Speaker 1: are there are situations where people who have severe cognitive disabilities.
Speaker 1: For example, UM, there are you know, parent a parent
Speaker 1: who was appointed as a conservator may may have concerns
Speaker 1: that this person, you know, that that's a mistake for
Speaker 1: this person to become a parent. But in this case
Speaker 1: here too, Brittany clearly was a highly functional person, and
Speaker 1: the UH of the ability to limit her reproductive choices
Speaker 1: and prevent her from having a child was disturbing. And
Speaker 1: the most disturbing I think of all was the invasive
Speaker 1: allegations about control, you know, a total loss of privacy.
Speaker 1: Every her her cell phone mirrored, so that every single
Speaker 1: text she sent to any person was known to UH,
Speaker 1: the security firm in to her father, that her bedroom
Speaker 1: was implanted with recording devices. Those are unheard of and
Speaker 1: really shocking, abusive and suggestive that this conservatorship went to
Speaker 1: places that are really unimaginable and should never have happened
Speaker 1: in an appropriately functioning system. So is that something that
Speaker 1: the judge should have caught I think the answer is yes.
Speaker 1: But I think we also have to lay part with
Speaker 1: the lay. There's there's plenty of blame to go around here. Um.
Speaker 1: I think that the Judge Penny, there needs to be
Speaker 1: questions about why there wasn't more scrutiny and why this
Speaker 1: was allowed to persist for thirteen years. There should be
Speaker 1: questions as to Britney's counsel, who was not of her
Speaker 1: own choosing at the time. Right now, Britney now has
Speaker 1: effective counsel who was only appointed in the last couple
Speaker 1: of months, But she for for years was represented by
Speaker 1: a court appointed lawyer who appears to have done like
Speaker 1: little to nothing to question anything that was going on.
Speaker 1: So she was sort of passive and it's a real
Speaker 1: question to me what her lawyer was doing. And of
Speaker 1: course the last place we have to look is at
Speaker 1: her father and his counsel and how he was permitted
Speaker 1: to just have kind of untrammeled control, you know, even
Speaker 1: though a lawyer is supposed to be an advocate for
Speaker 1: their client. How there was no sort of oversight even
Speaker 1: by his lawyer, to question the ethical ends of this
Speaker 1: conservatorship in the place where it had turned fraudulent and
Speaker 1: abusive is to me also a fair question for us
Speaker 1: to ask. If someone who is as famous as Brittany Spears,
Speaker 1: who's performing around the world, who has tons of fans
Speaker 1: watching her, if that could happen to her for thirteen years,
Speaker 1: what happens to an average person who gets put into
Speaker 1: a conservator ship? How did they get out of it?
Speaker 1: It's a fair question. I think our system is much
Speaker 1: better at at starting conservatorships than an ending them. And
Speaker 1: like a lot of things in our society, they have
Speaker 1: kind of a self perpetuating quality. Um. You know, I
Speaker 1: I've seen plenty of There are plenty of places where
Speaker 1: conservatorships are necessary, you know, where you have frankly sad
Speaker 1: uh situations in family life, where you have a child,
Speaker 1: for example, who's not who just physically has cognitive impairments
Speaker 1: that don't allow them to take care of themselves. Where
Speaker 1: you have a sibling, for example, who is dealing with
Speaker 1: mental health challenges and not able to protect themselves. We're
Speaker 1: living through a time when the number one form of
Speaker 1: abuse that we're seeing spread is elder abuse, elder abuse
Speaker 1: in the form of financial abuse, and you have children
Speaker 1: of aging parents who need structures to protect their family members. Right,
Speaker 1: So there is a legitimate place for this, But what
Speaker 1: this case highlights is that there is also a very
Speaker 1: abusive side to these where people can be preyed upon
Speaker 1: by the very people who are supposed to be protecting them.
Speaker 1: And I think that we are being forced to confront
Speaker 1: that there is a substantial amount of abuse by the
Speaker 1: conservators by the guardians themselves, and I think that's something
Speaker 1: that is going to need attention and and is going
Speaker 1: to lead to much more scrutiny and much more pressure
Speaker 1: on judges in the future to h to question and
Speaker 1: make sure that that that people aren't using their guardianship
Speaker 1: powers under conservatorship to uh to to engage in abuse themselves.
Speaker 1: In an abrupt turn around from his position, her father
Speaker 1: earlier this year said that he wanted the conservatorship to end.
Speaker 1: So he wants it to end. She wants it to end.
Speaker 1: How likely is it that the judge will end it?
Speaker 1: So I think there's a good chance that the judge
Speaker 1: is either going to terminate the conservatorship at the next hearing,
Speaker 1: or at least at a minimum, provide a roadmap of
Speaker 1: the steps that the judge is going to require and
Speaker 1: the showing that's going to be needed to terminated. So
Speaker 1: it was it's gonna be one or the other by
Speaker 1: the way we should It's important to note that her
Speaker 1: father's reversal is only really only happened in the last
Speaker 1: several months when it became clear that everybody associated with him,
Speaker 1: hit the financial managers, the the attorneys, everybody working for
Speaker 1: him were sort of like rats office thinking ship, and
Speaker 1: that he is really facing significant financial risk for his
Speaker 1: abusive behavior and posential that he's going to need to
Speaker 1: repay millions of dollars. So his his last his reversal
Speaker 1: should not be seen as as a supportive decision, in
Speaker 1: my opinion, It should be seen as really a kind
Speaker 1: of desperate attempt to uh to get out of harm's
Speaker 1: way himself. But but I think the fundamental challenge for
Speaker 1: for Judge Penny is going to figure out It's going
Speaker 1: to be to figure out how to how to set
Speaker 1: things right. And I think it makes sense and it's
Speaker 1: appropriate for her to terminate the conservatorship on the petition
Speaker 1: that was filed by Britney's lawyer, Matthew Rosenart hopefully hopefully
Speaker 1: this this coming week. Spears said she'd done research that
Speaker 1: showed her Conservative ship could be ended without further evaluation
Speaker 1: of her. Is that the case or what it would
Speaker 1: have to be proven under California law so traditionally so,
Speaker 1: so judge is going to have to find that she
Speaker 1: is she's capable of managing her that she you know,
Speaker 1: she's capable of relying and taking the advice of the
Speaker 1: advisors around her to uh, you know, to appropriately manage
Speaker 1: her financial affairs. And also that she is likewise able
Speaker 1: to you know, uh rely upon and she's listening to
Speaker 1: uh doctors and getting appropriate medical care. Um uh And
Speaker 1: so I think you know my typically you know, on
Speaker 1: the on the issue of her mental state, judges have
Speaker 1: wanted psychological psychiatric evaluations hum of the Conservatives conservative uh,
Speaker 1: the person in Brittany's position to to have some record
Speaker 1: to go on, um, you know. And that's really the
Speaker 1: big question is is Judge Penny going to say that
Speaker 1: that's still necessary. Brittany has made it very clear that
Speaker 1: she doesn't want to have to undergo that evaluation, and
Speaker 1: that her performance over the last uh several years it
Speaker 1: should be indicative that she's like a very high functioning
Speaker 1: person who is obviously succeeding in uh, you know, in
Speaker 1: in in building an incredible career and uh and it's
Speaker 1: clear that she's got good and she's getting good advice
Speaker 1: and she's following it. So it's really a close call.
Speaker 1: To me, there's no reformal requirement that a psychiatric or
Speaker 1: psychological evaluation done, but and it would be a conservative step,
Speaker 1: But I do I suspect that the judge is going
Speaker 1: to be feeling an awful lot of pressure to put
Speaker 1: this thing um in the rear view mirror, and so
Speaker 1: that she's not going to require That's just that's my
Speaker 1: my prediction. But we'll we'll have to find out this week.
Speaker 1: So Brittany's lawyer vows to investigate her father, Will his
Speaker 1: financial decisions be investigated when the conservatorship is ended and
Speaker 1: control is given back to her over her finances. I
Speaker 1: think we I think it's almost the certainty that we're
Speaker 1: going to see a substantial investigation, particularly given the given
Speaker 1: the allegations of uh, the of the bugging, you know that,
Speaker 1: and all the security and personal privacy invasions that happened
Speaker 1: at substantial expense. I think that is that's one factor
Speaker 1: that's likely to lead to this investigation. The other is
Speaker 1: that we we heard from one of the co conservators
Speaker 1: of the estate, who was the professionally appointed person that
Speaker 1: Brittany spot they're spent sent at least a million, and
Speaker 1: I believe the allegation was several million dollars on pr
Speaker 1: and on lawyers try to fight his daughter's own efforts
Speaker 1: to uh to sort of write the ship and to
Speaker 1: terminate the conservative ship. So um. The fact that he
Speaker 1: spent so many millions of dollars that don't appear to
Speaker 1: have been for her benefit and appear to have been
Speaker 1: to preserve his power is almost certainly, in my view,
Speaker 1: likely to lead to an investigation. And I fully expect
Speaker 1: that at some point we're going to see an order
Speaker 1: from the court for him to return moneys that were
Speaker 1: Brittany's that he spent not on her behalf but ultimately
Speaker 1: for his own gain, uh, and that he is going
Speaker 1: to you know, be be forced to repay. So we'll
Speaker 1: see what happens tomorrow. Thanks Harry. That's Harry Nelson of
Speaker 1: Nelson Hardeman in a high stakes gamble. Eighteen year old
Speaker 1: Kyle Rittenhouse took the stand at his murder trial yesterday
Speaker 1: and testified that he was under attack when he killed
Speaker 1: two men and wounded a ord during a chaotic night
Speaker 1: of protests in Kenosha, Wisconsin. During cross examination, prosecutor Thomas
Speaker 1: Binger question why Rittenhouse brought his A R style semi
Speaker 1: automatic rifle to Kenosha. I need the gun because if
Speaker 1: I had to protect myself because somebody attacked me. Why
Speaker 1: would you think anybody would do that? I don't know,
Speaker 1: but you clearly planned on it. You were prepared for it.
Speaker 1: You thought it was gonna happen. No, I didn't. That's
Speaker 1: the whole reason you brought the gun, isn't it. I
Speaker 1: brought the gun to protect myself. My guest is John Gross,
Speaker 1: a professor at the University of Wisconsin Law School and
Speaker 1: director of the Public Defender Project, explain why Rittenhouses lawyers
Speaker 1: asked the judge for a mistrial. Well, the request for
Speaker 1: a mistrial was based on the fact that the prosecutor
Speaker 1: made some commentary or asked some questions about the fact
Speaker 1: that Kyle Rittenhouse did not talk to the police officers
Speaker 1: who took him into custody and first interviewed him. And
Speaker 1: the problem with that is that there is a longstanding
Speaker 1: constitutional rule against prosecutors commenting on the fact that a
Speaker 1: defendant chose to remain silent when questioned by law enforcement,
Speaker 1: because that is a constitutional right that we all have.
Speaker 1: Mr Rittenhouse doesn't have to talk to law enforcement. He
Speaker 1: doesn't have to take the stand at his own trial,
Speaker 1: even though he did. And so prosecutors who suggest or
Speaker 1: question defendant about why they didn't talk to police, why
Speaker 1: they didn't offer some type of exculpatory testimony, why in
Speaker 1: this case Mr Rittenhouse didn't say I fired in self defense,
Speaker 1: that would be improper for them to do. They're asking,
Speaker 1: essentially the jury to infer that their failure to talk
Speaker 1: to the police suggested that they were guilty. That was
Speaker 1: the basis of the defense motion yesterday. Um On a
Speaker 1: more basic level, of mistrial occurs when something about the
Speaker 1: perce meetings because of some highly prejudicial and improper evidence
Speaker 1: that was introduced, that the proceedings themselves become sort of
Speaker 1: fundamentally unfair and it requires a new trial. Now in
Speaker 1: this case, they were asking for a mistrial with prejudice
Speaker 1: so that written House couldn't be tried again. That's pretty
Speaker 1: unusual for a judge to grant, isn't it. Yes, mistrials
Speaker 1: in general, aside from trials where there is a hung jury,
Speaker 1: which also results in a mistrial, but the granting of
Speaker 1: a mistrial during the trial is very rare, and the
Speaker 1: granting of one with prejudices even rarer. Still. You know,
Speaker 1: throughout the course of a trial, sometimes witnesses make statements
Speaker 1: that are not admissible, Questions are asked that are improper,
Speaker 1: but judges simply give an instruction to the jury. They
Speaker 1: uphold an objection and they tell the jury that they
Speaker 1: should disregard the question. Or a witness says something that's
Speaker 1: irrelevant and the judge says, don't pay any attention to that.
Speaker 1: And so usually judges have these curative instructions that they
Speaker 1: give throughout the trial, and that's sufficient and the judge
Speaker 1: doesn't need to say, what we have to startle over again,
Speaker 1: this is a mistrial. The root of the argument that
Speaker 1: the defense was making the mistrial with prejudice. That can
Speaker 1: be granted when a judge believes that the prosecutor intentionally
Speaker 1: caused the mistrial. So the prosecutor knew the evidence was improper,
Speaker 1: knew that the questions they were asking were improper, but
Speaker 1: did it anyway and did it intentionally to create a
Speaker 1: situation where the trial became fundamentally unfair. And if they
Speaker 1: do that on purpose, then there is the possibility that
Speaker 1: the judge can say double jeopardy does apply here and
Speaker 1: you can't retry to defend it. In this case, the
Speaker 1: prosecutor told the judge he'd been acting in good faith.
Speaker 1: The judge said, I don't believe that. There is seems
Speaker 1: to be a very antagonist relationship between the judge and
Speaker 1: the prosecutor. He even yelled at him. I'm just wondering
Speaker 1: how that affects the jury when they see the judge
Speaker 1: and the prosecutor not behaving properly. Well. Part of the
Speaker 1: initial jury instructions that jurors get is that they they
Speaker 1: shouldn't draw any inferences from the fact that a judge
Speaker 1: may uphold an objection or chastise one of the attorneys
Speaker 1: in the course of the case. That basically the judge
Speaker 1: gives them an instruction to say that the jury shouldn't
Speaker 1: infer any from this. It's it's not personal. Lawyers have
Speaker 1: an obligation to make objections, They have obligations to make arguments.
Speaker 1: The judge has an obligation to to rule on those
Speaker 1: and to keep order in the courtroom, and that the
Speaker 1: advocates are going to make passionate arguments for their cause,
Speaker 1: and and that that's okay. It does become problematic if
Speaker 1: if a jury starts to perceive that the judge is
Speaker 1: hostile to one party's point of view or one party's case,
Speaker 1: or has a dislike for one of the litigants and
Speaker 1: is demonstrating that through the language they use or the
Speaker 1: way that they're referring to them or treating them throughout
Speaker 1: the trial. I don't see anything that rises to that
Speaker 1: level in this case. You know, the prosecution here has
Speaker 1: kind of a challenging case to make out. They have
Speaker 1: to disprove beyond a reasonable doubt that Mr Rittenhouse acted
Speaker 1: in self defense. So it's a challenging case for them,
Speaker 1: and they are pushing hard. They're they're pushing the limits.
Speaker 1: But I think one of the things that sparked the
Speaker 1: judges anger at the prosecutor yesterday was this rule about
Speaker 1: not commenting on a defendant's silence is a long standing
Speaker 1: rule and it implicates constitutional rights to the defendant. And
Speaker 1: this particular prosecutor is very experienced. So this was not
Speaker 1: an accident in the judge's mind. This was not sort
Speaker 1: of a rookie mistake. This was something that the prosecutor
Speaker 1: knew he shouldn't be doing, but he did it anyway.
Speaker 1: And that's why the judge says to him that the
Speaker 1: judge doesn't feel like he was acting in good faith. Now,
Speaker 1: is that one incident even if the judge thinks it
Speaker 1: wasn't bad faith enough to prompt an entire mistrial, Probably not.
Speaker 1: It doesn't rise to that level. And the judge addressed
Speaker 1: it as it came up, and then he addressed it
Speaker 1: outside of the presence of the jury. So let's talk
Speaker 1: about Rittenhouse testifying. Did he help or hurt himself with
Speaker 1: his testimony? I think he helped himself. Um. I think
Speaker 1: any time the defendant can get on the stand, especially
Speaker 1: in a case like this where emotions are running high, um,
Speaker 1: and they have been sort of portrayed in a certain
Speaker 1: light um in the media by the prosecution. In this case,
Speaker 1: you know, the prosecution was to paint him as a vigilante. Um.
Speaker 1: And when he gets on the stand, I think you
Speaker 1: see him as a person. At any time the defendant
Speaker 1: takes the stand, you get the opportunity to hear from them. Uh,
Speaker 1: see them as as a as a fellow human being
Speaker 1: and not some caricature that's being made out by the
Speaker 1: other side. Um. He showed emotion on the stand. Um.
Speaker 1: You know, obviously he continued to say that he thought
Speaker 1: he was justified in doing what he did. But UM,
Speaker 1: the emotion that you could see when he took the stand,
Speaker 1: when he was in answering questions and explaining what happened
Speaker 1: that night, that can be powerful for a jury. And
Speaker 1: can you know, really humanize him and see that he
Speaker 1: does struggle with what happened that night on a on
Speaker 1: a personal level, on a on an emotional level. Um.
Speaker 1: And and I you know, again, it wasn't a surprise
Speaker 1: what he said. I mean, we all pretty much knew
Speaker 1: what he was going to say, and he said it.
Speaker 1: But having him say it, and having him say it
Speaker 1: in the way that he did, UM, showing some emotion
Speaker 1: about it, and UM, you know, I think that was important.
Speaker 1: And I and the danger with putting him on the
Speaker 1: stand is that the prosecution can cross examine him. UM.
Speaker 1: But I thought during the cross examination, once again, I
Speaker 1: think he was a very well prepared witness and acquitted
Speaker 1: himself fairly well. He took the opportunity when the prosecution
Speaker 1: gave it to him on cross too tell his story. UM.
Speaker 1: And I think in any case where they're where you're
Speaker 1: asking the jury to kind of put themselves into the
Speaker 1: perspective of the defendant, to view things through the eyes
Speaker 1: of the defendant on that evening and make a decision
Speaker 1: about whether or not their conduct was reasonable. UM. Hearing
Speaker 1: directly from the defendant is really important. It struck me
Speaker 1: that he said I didn't do anything wrong. I defended myself.
Speaker 1: It seemed like there wasn't remorse. I think he's actually
Speaker 1: in a difficult spot when he's on the stand about
Speaker 1: that because UM and and and this will have come from,
Speaker 1: you know, discussions with his defense lawyers, and I have
Speaker 1: to say, I want to just caution listeners to UM.
Speaker 1: It's perfectly normal and part of UM, you know, part
Speaker 1: of trial strategy, UM, to prepare witnesses to get on
Speaker 1: the stand. And I mean you could see Mr Grosscroiz
Speaker 1: was also a very well prepared witness and often would
Speaker 1: answer when he was asked questions. He would turn and
Speaker 1: speak directly to the jury, which is something that you
Speaker 1: encourage witnesses to do so. So I don't want to
Speaker 1: suggest any lawyer was acting improperly, but I think I'm
Speaker 1: I'm quite certain that when they were discussing Mr. Rittenhouse testimony,
Speaker 1: I'm i'm certain that the issue of what level of
Speaker 1: responsibility and remorse should he show on the stand, What
Speaker 1: what should he say? Um And? I would expect his
Speaker 1: lawyers probably counseled him that if he felt he was
Speaker 1: justified in shooting, which that that has been his testimony,
Speaker 1: that's been his position, he should hold to that position,
Speaker 1: um and. And he should not say that he feels
Speaker 1: bad or remorseful about what happened. He should stick to
Speaker 1: maintaining his claim that he was justified in doing what
Speaker 1: he did. Um And. So it's a difficult place for
Speaker 1: him to be on the stand. Um. I can't imagine
Speaker 1: any person who takes the life of another human being
Speaker 1: not feeling some remorse for doing that, especially under these circumstances.
Speaker 1: But whether or not, the lawyers sort of counseled him
Speaker 1: that that was a good thing to say on the stand,
Speaker 1: right because it it might lessen his claim that he
Speaker 1: was justified. UM. I'm sure that entered into the calculation.
Speaker 1: So so I think that's the sort of tight rope
Speaker 1: he was trying to walk on the stand. It did.
Speaker 1: Did the prosecutor accomplish anything during his cross examination? I mean,
Speaker 1: it seemed like Written House was really well prepared by
Speaker 1: his own counsel. Did the prosecutor make any headway at all?
Speaker 1: Not very much. UM. I think part of it is
Speaker 1: because Written House was very prepared. Um. You know, you know,
Speaker 1: you know, you tell witnesses to to not get an
Speaker 1: arguments or debates, you know with the person cross examining you, um,
Speaker 1: you know, answer the questions put to you briefly, accurately. Um.
Speaker 1: So he was definitely a witness who was well prepared
Speaker 1: to be subjected to cross examination. Uh. If there was
Speaker 1: one thing that the prosecution perhaps accomplished um during cross examination,
Speaker 1: it was to get him to admit that he had
Speaker 1: that gun illegally, that he had um gotten someone to
Speaker 1: purchase for him because he knew he wasn't allowed to
Speaker 1: have it. UM. But I think again, I think that's
Speaker 1: part of Ultimately it's going to be part of the
Speaker 1: defense strategy to concede that point and say, yes, he
Speaker 1: was guilty of the misdemeanor of going armed while under eighteen,
Speaker 1: but he was not guilty of the other charges that
Speaker 1: he's he's been accused of. Does it seem as if
Speaker 1: a focus of the jury will be on looking at
Speaker 1: those videos and analyzing what went on. Yes, And I
Speaker 1: think there's an interesting point that should be made here
Speaker 1: is that the lawyers throughout the trial asked people on
Speaker 1: the stand about the videos with some regularity, Like there
Speaker 1: was a fair amount of questioning where the defense and
Speaker 1: the prosecution would play a video and ask the witness, well,
Speaker 1: what did you hear on that video or what do
Speaker 1: you see on the video? I think people should should
Speaker 1: keep in mind that those videos are in evidence, and
Speaker 1: what that essentially means is that when the jury goes
Speaker 1: back to deliberate, they can watch the videos themselves. They
Speaker 1: can watch the videos as many times as they want,
Speaker 1: They can fast forward and freeze frame and and listen
Speaker 1: to what people are saying on those videos, and ultimately,
Speaker 1: whatever the witnesses said they think the videos show the
Speaker 1: jury is going to watch and listen to the video
Speaker 1: and watch the video listening audio, and they're going to
Speaker 1: make the decision for themselves about what it shows. UM.
Speaker 1: And and again an interesting point that I think was
Speaker 1: made UM recently in the trial by the the expert
Speaker 1: called by the defense who who uses who analyzes use
Speaker 1: of force and uses video. He sort of cautions the
Speaker 1: jury to say, look, we're slowing this down second by second, Um,
Speaker 1: but that's not how people experienced or perceived the events
Speaker 1: because we can't we can't stop the video in real
Speaker 1: life and make a calculated decision about whether use of
Speaker 1: force should be used or not. So so yeah, I
Speaker 1: think I think the video will be a critical part
Speaker 1: of the jury's analysis here. And also not just in
Speaker 1: the you know, checking frame by frame what happened, but
Speaker 1: also in playing it in real time and trying to
Speaker 1: get a sense of what the environment on the street
Speaker 1: of Kenosho, what it was like to be there that evening.
Speaker 1: Once he raises self defense, the prosecution has to disprove
Speaker 1: the at beyond a reasonable doubt. Yes, this is something
Speaker 1: that UM is. It's not unique to Wisconsin law. Other
Speaker 1: states have this approach as well, but um. Oftentimes, if
Speaker 1: a defendant raises a type of affirmative defense, which self defenses,
Speaker 1: so so essentially an affirmative defense is the defendant is saying, yes,
Speaker 1: I did the acts that would normally be considered criminal,
Speaker 1: I shot the person, but I have an affirmative defense.
Speaker 1: I'm putting forth evidence to suggest that I did it,
Speaker 1: but only did it because I was acting in self defense.
Speaker 1: Once the defendant does that, Once the defendant, under Wisconsin
Speaker 1: law and the law of many other states, put self
Speaker 1: defense at issue, once there's some evidence that the defendant
Speaker 1: may have been acting in self defense, the prosecution now
Speaker 1: has to disprove that beyond a reasonable doubt. So there
Speaker 1: is what we would call a burden of production on
Speaker 1: the defense. They have to present evidence that they were
Speaker 1: acting in self defense. But once they do that, now
Speaker 1: the prosecution has to disprove it beyond a reasonable doubt.
Speaker 1: And frankly, in this particular case, I think that's going
Speaker 1: to be challenging for the prosecution to do that. Explain
Speaker 1: why you think that, well, I mean, just the the
Speaker 1: the allegation or the the the evidence that Mr Rittenhouse
Speaker 1: is presented and even the prosecution has presented suggests that
Speaker 1: at various times throughout the evening when he did shoot
Speaker 1: at people, UM, that the people were moving toward him
Speaker 1: or attempting to strike him, or even in the case
Speaker 1: of Mr Grosscroyd's was actually armed and by his own admission,
Speaker 1: pointing a gun at him. UM. Under those circumstances, the
Speaker 1: prosecution is going to be required to prove beyond a
Speaker 1: reasonable out that he wasn't acting in self defense. He
Speaker 1: doesn't have to prove beyond a reasonable doubt that he
Speaker 1: was UM. But it's it's gonna be challenging for the
Speaker 1: prosecution to do that because especially with not the initial
Speaker 1: shooting necessarily with Mr Rosenbaum, but the subsequent shootings that
Speaker 1: occurred that night. UM. Even the prosecution's witnesses Mr particularly
Speaker 1: Mr gross Froyd, said I thought he was in danger.
Speaker 1: I thought this group of people was pursuing him, trying
Speaker 1: to assault him at times, and his own testimony said
Speaker 1: I moved towards him because I thought he was going
Speaker 1: to get hurt. So if you have a prosecution witness
Speaker 1: who was shot by him making statements on the stand
Speaker 1: to say I feared that he was in danger, and
Speaker 1: that prosecution witness also says, I was carrying a concealed
Speaker 1: weapon and began to point it at him when he
Speaker 1: shot me. It's I think it's going to be very
Speaker 1: difficult for the prosecution to meet that burden of disproving
Speaker 1: that he had a reasonable belief and was acting in
Speaker 1: self defense at those moments when he fired. Thanks for
Speaker 1: being on the show. That's John Gross, the professor at
Speaker 1: the University of Wisconsin Law School and director of the
Speaker 1: Public Defender Project. DC. Federal Judge Tanya Chukkin denied former
Speaker 1: President Trump's request for an injunction to prevent the National
Speaker 1: Archives from releasing documents to the US House panel investigating
Speaker 1: the January six Capital Riot. Typically, executive privileges reserved for
Speaker 1: the current occupant of the White House, but in this case,
Speaker 1: President Joe Biden has waived it. Trump's lawyers argued that
Speaker 1: a former president should maintain some ability to invoke executive privilege,
Speaker 1: joining me as former federal prosecutor Robert Mintz, a partner
Speaker 1: mcarter in English, Bob tell us about Trump's claim here.
Speaker 1: Former President Trump was seeking to block the release of
Speaker 1: documents thought by the U S House panel investigating the
Speaker 1: January six Capital Riot and the President's legal team was
Speaker 1: relying essentially on the doctrine of executive privilege, saying that
Speaker 1: although he was no longer the president, he still had
Speaker 1: the ability to assert executive privilege over notes and internal
Speaker 1: workings within the White House and among his staff related
Speaker 1: to events surrounding the January six riots. A DC federal
Speaker 1: judge denied Trump's request for an injunction. Tell us why
Speaker 1: the disrecorded judge rejected the Trump argument that he's entitled
Speaker 1: to keep these records secret from Congress. The judge said
Speaker 1: that the executive privilege that the Trump legal team relied
Speaker 1: on exists to protect the executive branch, not an individual.
Speaker 1: The judge was very explicit and said that the incumbent
Speaker 1: president in this case, President Biden, and not the former president,
Speaker 1: is in the best position to evaluate the long term
Speaker 1: interest of the eecutive branch. In this case, we had
Speaker 1: a situation where former President Trump was seeking to invoke
Speaker 1: executive privilege, but the current president, President Biden, had reviewed
Speaker 1: the same information and decided to waive the privilege on
Speaker 1: behalf of the executive branch. The judge came down on
Speaker 1: the side of the sitting president rather than the former president.
Speaker 1: That said that that information had to be turned over.
Speaker 1: She said, presidents are not kings and plaintiff is not president.
Speaker 1: Some of the records that Trump is trying to keep
Speaker 1: from the Select Committee include things like the daily presidential diaries, schedules,
Speaker 1: appointments of White House visitors, call logs, drafts of speech,
Speaker 1: or correspondence related to the insurrection. Some of that seems
Speaker 1: to be not in the realm of executive privilege, like
Speaker 1: white House visitors or presidential schedule call loggs. Even if
Speaker 1: you thought there was executive privilege, it doesn't seem like
Speaker 1: those would be part of it. Well, that's a good point,
Speaker 1: because let's remember what executive privilege is and how it's
Speaker 1: supposed to work. The doctrine of executive privilege was really
Speaker 1: created in order to protect the internal communications within the
Speaker 1: White House and with the President of United States. Prior
Speaker 1: court rulings have established that this doctrine is a balancing test.
Speaker 1: In other words, it's a qualified privilege, it's not an
Speaker 1: absolute privilege. The argument in favor of privilege is that
Speaker 1: the president needs to be given candid advice in order
Speaker 1: to be effective. In other words, in order to be effective,
Speaker 1: a president needs to be able to consult with his
Speaker 1: advisors and to get the right kind of of advice,
Speaker 1: and there has to be some level of confidence that
Speaker 1: that advice will remain confidential or the fears that people
Speaker 1: will withhold that candid advice for fear that will become
Speaker 1: public someday. So in an instance where a president is
Speaker 1: facing a particularly difficult situation, it's not unusual for his
Speaker 1: aids to give him several options as to what he
Speaker 1: might do, and some of the those options may be unpopular.
Speaker 1: So in order to protect that candidate advice, the executive
Speaker 1: privilege says that that information should remain private and should
Speaker 1: not be disclosed to the public. The biggest argument on
Speaker 1: the other side of executive privilege is that you don't
Speaker 1: want to president and his aids to use executive privilege
Speaker 1: to hide wrongdoing. In other words, if the reason for
Speaker 1: refusing to turn over the information is not the need
Speaker 1: to protect confidential communications with the president, but in order
Speaker 1: to hide some kind of wrongdoing at the highest level
Speaker 1: of government, that is a reason to overrule executive privilege
Speaker 1: and to make sure that information is available to the public.
Speaker 1: Trump is going to appeal this to the d C Circuit.
Speaker 1: The panel there could reverse the judge's decision or affirm it.
Speaker 1: It could go to an ombank panel or even possibly
Speaker 1: to the Supreme Court. So the question is time, how
Speaker 1: much time before the committee actually gets the documents. Well,
Speaker 1: as it stands right now, these records are with the
Speaker 1: National Archives, and the National Archives has indicated that they
Speaker 1: will be turning over those records to the committee as
Speaker 1: of Friday, barring some kind of court ruling that tells
Speaker 1: them not to do that. So in this case, the
Speaker 1: question is will you Appeals Court step in or protected
Speaker 1: the U. S. Supreme Court to slow this process down?
Speaker 1: And the reason that's so important is that if it's
Speaker 1: slowed down enough to get past the next round of elections,
Speaker 1: and it's possible that the House of Representatives will be
Speaker 1: controlled by the Republicans, this committee could be disbanded and
Speaker 1: ultimately this information could be never made public. In addition
Speaker 1: to executive privilege, Trump made another argument that the judge rejected.
Speaker 1: Tell us about that. One other argument that Trump legal
Speaker 1: team made in order to oppose turning over this information
Speaker 1: was to suggest that the information being sought by Congress
Speaker 1: was not for a legitimate legislative purpose. Ultimately, Congress can
Speaker 1: suppina information, but they can't really do their own investigations
Speaker 1: unless it's tied to some type of legislation. In this case,
Speaker 1: the court found that the House had every interest in
Speaker 1: examining all aspects of January six to consider legislation to
Speaker 1: prevent six events from ever occurring again. So she really
Speaker 1: dismissed the Trump argument that this was a witch hunt,
Speaker 1: that this was being done for political purposes, and she
Speaker 1: agreed with Congress that the information sought was tied to
Speaker 1: a legitimate legislative purpose and therefore the subpoenas, although they
Speaker 1: were quite broad, were enforceable. Bob. Typically executive privileges reserved
Speaker 1: for the current occupant of the White House, but in
Speaker 1: this case, so in the past, how have other presidents
Speaker 1: dealt with the issue of executive privilege. Well, first, let's
Speaker 1: recognize that the information here that we're fighting about is
Speaker 1: not in the possession of the current president or the
Speaker 1: past president. This information is being stored by the National Archives.
Speaker 1: And in the past what has happened is there has
Speaker 1: been a request that would otherwise potentially be privileged regarding
Speaker 1: a prior presidency. Representative of the current president would reach
Speaker 1: out to the prior president to consult with them about
Speaker 1: whether or not there should be an assertion of privilege,
Speaker 1: but ultimately the decision as to whether or not to
Speaker 1: assert that privilege would be decided by the sitting president.
Speaker 1: In the past, that is the way these issues have
Speaker 1: been resolved, and they have not made it to the courts,
Speaker 1: which is why there's not a lot of law on
Speaker 1: this issue of a past president asserting executive privilege as
Speaker 1: the documents that the current president believes ought to be
Speaker 1: turned over to the public. The most famous case about
Speaker 1: executive privilege is, of course, the case involving President Richard Nixon.
Speaker 1: The idea that presidents should keep some government information secret
Speaker 1: is nothing new. It actually dates back to George Washington,
Speaker 1: but it wasn't really until the eisenhowerd administration that the
Speaker 1: term executive privilege was coined, and of course it first
Speaker 1: made its way into the work in nineteen seventy three
Speaker 1: involving the famous Richard Nixon Watergate tape case. In that case,
Speaker 1: President Nixon was trying to shield the tapes that his
Speaker 1: office had recorded from Congress by claiming executive privilege. As
Speaker 1: we all know, the court ruled against President Nixon and
Speaker 1: he was required to turn over those tapes. But there
Speaker 1: is actually a Supreme Court case, again involving former President
Speaker 1: Nixon that does stand for the proposition and a former
Speaker 1: president has some ability to assert executive privilege even though
Speaker 1: they are no longer in office. That was a case
Speaker 1: in which the Government Services Administration was supposed to take
Speaker 1: custody of Nixon's papers and tapes. Now, in that case,
Speaker 1: the Supreme Court ultimately ruled against Nixon has said that
Speaker 1: the information had to be turned over, But the Supreme
Speaker 1: Court did say that a former president has some limited
Speaker 1: right to assert executive privilege in certain circumstances. There have
Speaker 1: not been other cases since them, and so the scope
Speaker 1: and the full impact of that court decision has not
Speaker 1: yet been tested. But that was the case that the
Speaker 1: Trump team relied upon and has continued to rely upon
Speaker 1: in asserting the right of a former president to astirt
Speaker 1: executive privilege even in the face of a sitting president
Speaker 1: deciding that the information ought to be disclosed. The January
Speaker 1: six House Committee, which is made up of seven Democrats
Speaker 1: and two Republicans, began investigating the Capital Riot over the summer.
Speaker 1: In addition to seeking records from Trump, the panel has
Speaker 1: subpoena documents and testimony from former Trump advisors, and the
Speaker 1: House Committee issued ten new subpoenas on Tuesday, closing in
Speaker 1: on Trump's inner circle at the White House. Now, other
Speaker 1: members of the Trump administration, like former advisor Steve Bannon
Speaker 1: and former Joice Department official Jeffrey Clark, have refused to
Speaker 1: comply with Committee subpoenas, but Democratic Congressman Adam Schiff, who
Speaker 1: was a member of the committee, said he expects these
Speaker 1: latest witness is to comply with the subpoenas. We expect
Speaker 1: them to do their lawful duty, which means they've been
Speaker 1: given a subpoena, they're compelled to appear. We expect them
Speaker 1: to compare, appear and provide their documents. It's our expectation
Speaker 1: that the Justice Department will prosecute those who do not
Speaker 1: comply with lawful subpoenas um and I think that will
Speaker 1: send a powerful message to others that you know, the
Speaker 1: rule of law is back. Of course, the Johnstone Department
Speaker 1: has not decided whether or not to go forward with
Speaker 1: criminal contempt proceedings for Bannon. Bob tell us about the
Speaker 1: latest subpoenas, So the committee has recently subpoena ten additional
Speaker 1: Trump administration officials, including former senior presidential advisor Stephen Miller
Speaker 1: for a White House Press Secretary Kaylee MCINNINNY. Other subpoenas
Speaker 1: included President Trump's former personal assistant. So they're casting a
Speaker 1: very broad net here trying to get information from all
Speaker 1: of the president's aids who were involved with the president
Speaker 1: during January six, including a people who may have had
Speaker 1: information with others outside the White House, particularly those who
Speaker 1: may have involved in organizing the Stop the Steel rally
Speaker 1: that led to the riots at the Capitol on January six.
Speaker 1: So some have already said, like former New York City
Speaker 1: Police Commissioner Bernie Carrick has already said, I'm not going
Speaker 1: to comply with the subpoena. What can the committee do?
Speaker 1: Those who are refusing to cooperate are relying on President
Speaker 1: Trump's assertion of executive privilege as a basis for not
Speaker 1: cooperating with the committee, So that decision really has to
Speaker 1: be resolved before those witnesses can be forced to testify it.
Speaker 1: But in the meantime, former presidential aid Steve Batten has
Speaker 1: already been found in contempt by Congress for philling to
Speaker 1: comply with its demand that he testify and turnover documents,
Speaker 1: and the House has forwarded that action over to the
Speaker 1: Justice Department for potential criminal prosecution. That is something that
Speaker 1: has rarely been done in the past, and Attorney General
Speaker 1: Merrick Garland has not indicated whether or not he is
Speaker 1: going to use the Department of Justice to pursue criminal
Speaker 1: charges against Steve Bannon and others who are refusing to cooperate.
Speaker 1: Congress is now just waiting for Merrick Garland to decide
Speaker 1: whether or not he is going to proceed with the
Speaker 1: criminal prosecution of Steve Bannon. Thanks for being on the show, Bob.
Speaker 1: That's former federal prosecutor Robert Mints, a partner mcarter and English.
Speaker 1: And that's it for this edition of The Bloomberg Law Show.
Speaker 1: Remember you can always get the latest legal news on
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Speaker 1: week night at ten pm Wall Street Time. I'm June
Speaker 1: Grosso and you're listening to Bloomberg