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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 1: It's a historic day, the first criminal trial of a

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Speaker 1: former president of the United States. Donald Trump is accused

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Speaker 1: of trying to corrupt the twenty sixteen presidential election by

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Speaker 1: falsifying business records to cover up a hush money payment.

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Speaker 1: In opening statements, prosecutor Michael Colangelo called it election fraud,

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Speaker 1: pure and simple. Quote. This was a planned, long running

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Speaker 1: conspiracy to influence the twenty sixteen election, to help Donald

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Speaker 1: Trump get elected through illegal expenditures to silence people who

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Speaker 1: had something bad to say about his behavior. But outside

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Speaker 1: the courthouse, Trump said it was a case about a

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Speaker 1: payment to a lawyer that was listed as a legal expense.

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Speaker 2: What else would you call it?

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Speaker 3: Actually, nobody's been able to say. What are you supposed

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Speaker 3: to call it?

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Speaker 4: Lawyer puts it a bill or an invoice, and you

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Speaker 4: pay the bill.

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Speaker 1: And in the book it's a little line.

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Speaker 3: That's a very.

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Speaker 4: Small little line.

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Speaker 1: I don't know if you didn't even write more than

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Speaker 1: two words. It sounds like you could tell a life story.

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Speaker 1: They marked it down to a legal expense. This is

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Speaker 1: what I got in Dintedough in the defense opening statements.

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Speaker 1: Trump's lawyer Todd Blanche said the former president did not

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Speaker 1: commit any crimes and is a victim of overreaching by

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Speaker 1: prosecutors who put their faith in poorn Star Stormy Daniels

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Speaker 1: and attorney Michael Cohen. He said Cohen was disbarred, a

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Speaker 1: convicted felon and a convicted perjurer who could not be believed.

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Speaker 1: Joining me from the courthouse in Lower Manhattan is Patricia Hurt.

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Speaker 1: Todd Oblomberg legal reporter Patty. Alvin Bragg has been the

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Speaker 1: subject of many a complaint from Trump. He didn't give

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Speaker 1: the opening statement, but was he in the courtroom?

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Speaker 3: Alvin Bragg, the Manhattanda is sitting in the front row

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Speaker 3: right behind his trial key, and he listened intently as

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Speaker 3: it was a prosecutor named Matthew Colangelo. They used to

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Speaker 3: work at the Justice Department and also worked for the

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Speaker 3: New York Attorney General when they brought civil suits against

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Speaker 3: the Trump Corporation back in the Trump University days. He

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Speaker 3: was part of that case and he's now the prosecutor

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Speaker 3: that gave the opening statement.

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Speaker 1: Give us the highlights of Colangelo's opening statement and whether

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Speaker 1: it was dramatic or subdued or somewhere in between.

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Speaker 3: Well, it was pretty dramatic because the jurors are hearing

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Speaker 3: for the first time and we've heard about this toush

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Speaker 3: money case. But what he was saying was that there

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Speaker 3: was an agreement, a secret agreement between Donald Trump a

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Speaker 3: David Pecker, who was a publisher and CEO and chairman

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Speaker 3: of the National Inquirer's owner company called the American Media Incorporated,

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Speaker 3: so that the two of them met with Michael Cohen

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Speaker 3: in a secret agreement to make sure that they would

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Speaker 3: kill and catch very any solationous news against Donald Trump

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Speaker 3: to help his campaign chances, and also attack and published

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Speaker 3: negative stories about his adversaries of his opponents for election,

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Speaker 3: including Ben Carson and Ted Cruz. And they were promoting

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Speaker 3: negative stories about Ted Cruiz, for example, claiming that his

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Speaker 3: father was involved in the assassinations of JFA. So there

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Speaker 3: was a story about a Trump dorman who claimed that

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Speaker 3: Trump had had a love child, and they bought his

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Speaker 3: silence off so that he would never tell his story.

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Speaker 3: And then in twenty sixteen, in October twenty sixteen, and

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Speaker 3: months before the election, the Access Hollywood tape comes out

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Speaker 3: in which Trump is caught on a hot mic discussing

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Speaker 3: his conquest of women, and that tape had a quote

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Speaker 3: unquote immediate and explosive impact on the campaign. They knew

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Speaker 3: it was damaging, not only because Trump bragged about sexual assault,

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Speaker 3: but it was in his own words and in his

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Speaker 3: own voice. Colangelo said, So, then what happened is they

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Speaker 3: decided to buy off any other salacious news and National

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Speaker 3: Enquirer knew about this other woman named Stormy Daniels, an

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Speaker 3: adult film actress who said she'd had a sexual encounter

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Speaker 3: with Trump in two thousand and six, so they reacted

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Speaker 3: very quickly to pay her off. The DA says they

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Speaker 3: have emails and text messages as well as a recording

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Speaker 3: of Trump discussing this payoff to Stormy Daniels with Michael Cohen,

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Speaker 3: and that Michael Cohen decided to record it. So they

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Speaker 3: have Trump in his own words on this recording, which

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Speaker 3: can support and corroborate Michael Cohen's account.

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Speaker 1: Did we know that before?

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Speaker 3: We knew that there was a recording, but we didn't

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Speaker 3: know this level of detail of all these emails and

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Speaker 3: text messages going back and forth between the parties. And

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Speaker 3: Colangelo said that Trump was basically was reluctant to reimburse Pecker,

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Speaker 3: and Pecker was concerned about not getting his money back,

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Speaker 3: and he paid Stormy off. So Michael Cohen took it

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Speaker 3: upon himself to take a home equity line of credit

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Speaker 3: and walked over the money and wrote his own personal

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Speaker 3: check paying off Sturmy Daniels hundred thirty thousand. That's in

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Speaker 3: twenty sixteen, right before Trump gets elected. And then Trump

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Speaker 3: went to the election and then has caught on tape

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Speaker 3: discussion again does he have to really pay now that

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Speaker 3: he's won. So then Michael Cohen later gets reimbursed by Trump.

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Speaker 3: Then false records are created to paper over these hush

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Speaker 3: money payments, calling them legal fuel.

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Speaker 1: Prosecutors often, very often have to present witnesses that are

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Speaker 1: tarnished in different ways. How did the prosecution handle the

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Speaker 1: fact that their star witness, Michael Cohen, is a convicted felon.

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Speaker 3: Well, that's what they were saying. They were pointing out that, yeah,

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Speaker 3: we have this guy, Michael Cohen. Yes he's a convicted

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Speaker 3: perger er. Yes he pled guilty to felonies federal felonies

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Speaker 3: of campaign finance, but he did it at Trump's behalf,

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Speaker 3: and he was saying that you know, none of these

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Speaker 3: these witnesses are pure, but he also said that they

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Speaker 3: have a trove of evidence supporting papers and texts, documentation,

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Speaker 3: bank records, you name it that support what Michael Cohen says.

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Speaker 3: Where the parties who are part of this discussion and

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Speaker 3: part of this It's not a scheme because of course

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Speaker 3: Donald Trump's not charged with any conspiracy, but this agreement

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Speaker 3: that there was evidence, a trove of evidence that would

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Speaker 3: support what Michael Cohen and what Stormy Daniels say, did it.

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Speaker 1: Come across that this was more than just you know

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Speaker 1: what the defense is going to say, accounting that this

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Speaker 1: was a conspiracy, an election interference.

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Speaker 3: The prosecution calls it election interference, but the princi layter

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Speaker 3: Todd Blanche says there's no crime here. Entering into non

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Speaker 3: disclosure agreement is not against the law, and he says

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Speaker 3: that Stormy Daniel's testimony will be quote unquote salacious, It

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Speaker 3: does not matter. He's tony jury. You can't base your

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Speaker 3: verse on a man who's so unreliable, claiming that Michael Cohen,

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Speaker 3: who has quote unquote obsessed with Donald Trump and has

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Speaker 3: made it his vendetta and his career, and he's pinned

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Speaker 3: his financial future on making sure Donald Trump gets convicted

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Speaker 3: and also going after and harassing Donald Trump. So he's saying,

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Speaker 3: you can't trust a guy like that.

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Speaker 1: Was Michael Cohen the focus of the defense, that he's

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Speaker 1: just unbelievable.

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Speaker 3: Well, the same thing with Stormy, She's not credible that

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Speaker 3: neither of these two people. Basically, Stormy was depicted as

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Speaker 3: that she tried to quote unquote extort money from Donald Trump,

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Speaker 3: and that she was trying to embarrass him and hurt

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Speaker 3: his brand, and that there's nothing wrong with what Trump did,

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Speaker 3: and that he claimed that is organizations and publications by

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Speaker 3: stories all the time, and then folded into that. David Pecker,

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Speaker 3: the man who is part of this Trump Tower meeting

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Speaker 3: in twenty fifteen and they'd launched this ketch and kill scheme,

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Speaker 3: gets on the stand and he said that part of

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Speaker 3: their business model was what he called quote unquote checkbook journalism.

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Speaker 1: And I suspect we're going to hear a lot more

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Speaker 1: of that when he retakes the witness stand tomorrow. As

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Speaker 1: far as the defense opening, how convincing was it on

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Speaker 1: the subject of this is much ado about nothing? At

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Speaker 1: one point Bland said it's just thirty four pieces of paper.

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Speaker 3: Yeah, I mean it was effective at some point, you know,

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Speaker 3: like I said, he called kid that Jeremy Daniels was

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Speaker 3: trying to quote unquote almost extort end quote money from Trump,

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Speaker 3: and the prosecutor wept up and said objection, and the

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Speaker 3: judge struck it from the record. He was trying to

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Speaker 3: basically hint to the jury and telegraph to them, look,

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Speaker 3: these people are not credible, and why would you believe

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Speaker 3: their word? And he actually also said, spoiler alert, spoiler alert,

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Speaker 3: there's nothing wrong with trying to influence an election. And

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Speaker 3: I don't know how the jury's going to feel about that.

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Speaker 3: I mean, we'll have to see if a Manhattan jury

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Speaker 3: is going to agree with the defense lawyer that there's

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Speaker 3: nothing wrong with trying to do what Donald Trump did

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Speaker 3: that all fear and love and war, including death.

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Speaker 1: That may be a bridge too far.

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Speaker 3: I know that's a very bold statement to make, you know,

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Speaker 3: it depends on how the jury is going to react

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Speaker 3: to that and how they'll feel.

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Speaker 1: Did the prosecution object to.

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Speaker 3: That, Yes they did. There were lots of times they

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Speaker 3: leapt up and objected. I actually lost track after.

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Speaker 1: Three the first witness, David Pecker, took the stand for

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Speaker 1: a brief time. What can you tell us about him?

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Speaker 3: He actually walked into the curtain with a big smile

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Speaker 3: on a space and at first Trump was nadally scribbling

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Speaker 3: something on a piece of paper, and then later on

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Speaker 3: Trump basically twisted his entire body to turn and look

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Speaker 3: at Pecker and watch him intently as he testified. He

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Speaker 3: was on a very very brief time. I was saying

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Speaker 3: maximum twenty two minutes. Most of it was talking about

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Speaker 3: his biographical his background, and it was interesting to me

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Speaker 3: to hear. He said that where did their offices? Where

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Speaker 3: were their offices in New York? And he said down

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Speaker 3: by Pech Street, which is down like a few blocks

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Speaker 3: from here. So if you think about it, we're in

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Speaker 3: a courtroom in a courthouse in Lower Manhattan, and then

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Speaker 3: maybe just about a half mile away on Tech Street,

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Speaker 3: the National Inquirer and American Media and have their offices too.

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Speaker 1: And he's gotten immunity from prosecution, right, and he's the

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Speaker 1: first witness because he's going to set up the whole scheme.

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Speaker 3: Yeah, I mean, he seems like he's a good, composite witness.

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Speaker 3: And he testified before the grand jury. When you do that,

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Speaker 3: you get immunity. So he's testifying with a grant of immunity,

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Speaker 3: and he can lay out the scheme in a way

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Speaker 3: that maybe somebody that was allegedly tainted the way Satan

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Speaker 3: may view Michael Cohen as being painted and conflicted because

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Speaker 3: of his background and his convictions might be see. So

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Speaker 3: Pecker doesn't have that kind of a pat.

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Speaker 1: This morning, Judge Murshawn ruled on what evidence prosecutors will

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Speaker 1: be able to use in their cross examination of Donald

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Speaker 1: Trump should he take the witness stand.

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Speaker 3: Also an interesting ruling that the judge Mersehawan said that

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Speaker 3: the prosecutors that if Trump takes the stand, He made

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Speaker 3: a series of rulings that said there were certain things

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Speaker 3: that possecutors could question or cross examined Trump about, including

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Speaker 3: the two Egen Carrol verdicts of finding that he defamed

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Speaker 3: her as well as and she's the New York writer

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Speaker 3: that said he sexually assaulted her and then defamed her

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Speaker 3: when he called her a liar, and then also can

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Speaker 3: talk about the prosecutors are free to question Trump about

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Speaker 3: how he was found to a violate a judge in

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Speaker 3: Goron gag order in the New York Attorney General trial,

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Speaker 3: and the judge also ruled that Trump could be questioned

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Speaker 3: about the verdicts the New York Attorney Generals of you know,

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Speaker 3: winning verdict of whether it four hundred and eighty five

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Speaker 3: million dollars he has to disgorge for unlawfully or illegally

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Speaker 3: inflating his assets in a civil faud sit.

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Speaker 1: That I was surprised that the that the order was

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Speaker 1: so broad, that the judge was allowing the prosecution so

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Speaker 1: much leeway.

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Speaker 3: Ah. Yes, but you know they aren't actually wanted more

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Speaker 3: including you know, there's apparently a case involving Hillary Clinton

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Speaker 3: from Florida where the judge ripped into Donald Trump for

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Speaker 3: calling it like a serial litigant, and the judge said

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Speaker 3: he just thought it was too far afield.

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Speaker 1: That might effect whether Trump testifies or not, because you

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Speaker 1: can just imagine the.

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Speaker 3: Cross you know, the key things like, you know, credibility, reliability,

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Speaker 3: how do you do your conductor business? Oh wait, a

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Speaker 3: state Supreme Court justice determined that you committed civil frauds.

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Speaker 3: It's a two juries found that use the same Ejing Carroll.

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Speaker 3: Oh wait, the state judge found it you violated his

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Speaker 3: gag order. And then when you claim that you weren't

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Speaker 3: talking about his law clerk, he found you, quote unquote

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Speaker 3: not credible. So those are the kinds of things that

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Speaker 3: have a lot to say about Donald Trump's credibility.

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Speaker 1: All right, Now, tomorrow morning, the judge is going to

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Speaker 1: hear the prosecution's motion that it made before opening statements

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Speaker 1: during jury selection.

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Speaker 3: When the trial started on Monday, with jury selection last

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Speaker 3: Monday on the fifteenth. The days leading up to jury

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Speaker 3: selection on the fifteen, Trump had gone and tweeted and

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Speaker 3: posted on social media and truth social a lot of

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Speaker 3: comments slamming Michael Cohen and slamming Stronmy Daniel and saying

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Speaker 3: all kinds of critical things. And the prosecutors said that

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Speaker 3: those statements were a violation of the gag order, including

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Speaker 3: a third statement that they said had been made that

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Speaker 3: warning the jury selection started, and they were surmising that

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Speaker 3: they the Trump may have sent it when he was

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Speaker 3: in the courthouse already. After he does that, he issues

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Speaker 3: more statements. So now they have I think a compendium

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Speaker 3: of at least ten statements they say are a violation

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Speaker 3: of the judges prior gag order, And the most recent

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Speaker 3: one was an extended gag order on April first, not

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Speaker 3: to make critical comments of the witnesses because it could

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Speaker 3: be viewed as intimidation, because Trump's followers could be you know,

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Speaker 3: it could be sticking them on to attack them or

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Speaker 3: make comments or make their lives miserable. So if the

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Speaker 3: judge is going to have a hearing to determine if

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Speaker 3: Trump has contemptuously violated the gag and they're asking that

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Speaker 3: he get one thousand dollars fine for each of the

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Speaker 3: three violations and a warning that he doesn't obey, he

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Speaker 3: could face jail.

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Speaker 1: I can't imagine how high the threshold would be to

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Speaker 1: put him in jail, though, Thanks so much, Pat, We'll

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Speaker 1: check back with you after court tomorrow. That's Bloomberg Legal

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Speaker 1: reporter Patricia Hurtado. Blessness has reached record levels in this country,

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Speaker 1: with more than six hundred thousand people experiencing homelessness on

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Speaker 1: any given night, and today, for the first time in

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Speaker 1: forty years, the Supreme Court took up the topic, considering

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Speaker 1: what measures cities can take to deal with the rising homelessness.

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Speaker 1: Here's Liberal Justice Sonya, So to mayor.

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Speaker 4: Where do we put them? If every city, every village,

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Speaker 4: every town, lacks compassion, and he passes a law identical

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Speaker 4: to this. Where are they supposed to sleep? Are they

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Speaker 4: supposed to kill themselves?

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Speaker 5: Not?

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Speaker 1: Sleeping grants pass. A rural Oregon community of forty thousand

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Speaker 1: has an ordinance finding people for sleeping in public places

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Speaker 1: using blankets or other bedding, and the Ninth Circuit rule

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Speaker 1: that law violates the Eighth Amendments prohibition against cruel and

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Speaker 1: unjust punishment. But during the oral arguments today, many of

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Speaker 1: the conservative justices suggest that judges should not be the

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Speaker 1: ones to design policy. Here are Chief Justice John Roberts

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Speaker 1: and Justice Neil Gorsuch.

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Speaker 5: And it's a policy problem because the solution, of course

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Speaker 5: is to build shelter, to provide shelter for those who

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Speaker 5: are otherwise harmless. But municipalities have competing priorities. I mean,

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Speaker 5: what if there are lead pipes in the water, do

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Speaker 5: you build the homeless shelter or do you take care

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Speaker 5: of the lead pipes? What is there aren't isn't enough

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Speaker 5: fire protection? Which one do you prioritize? Why would you

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Speaker 5: think that these nine people are the best people to

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Speaker 5: judge and way those policy judgments? And six judges across

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Speaker 5: the country are now going to superintend this under the

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Speaker 5: Eighth Amendment.

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Speaker 1: Joining me is an expert in constitutional law. Harold Krant,

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Speaker 1: a professor at the Chicago Kent College of Law, tell

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Speaker 1: us about the facts here.

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Speaker 2: How so the grants passed word unlike other towns try

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Speaker 2: to combat the home business problem in various ways, and

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Speaker 2: homeless necessaris we know is unhealthy and breed crime. So

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Speaker 2: it's not good for people who are homeless. It's not

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Speaker 2: good for the city either. But the way they've done

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Speaker 2: it is to potentially criminalize the act of sleeping with

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Speaker 2: a blanket in a public space. And homeless advocates sued

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Speaker 2: challenging the ordinance as inconsistent with the Eighth Amendment ban

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Speaker 2: on cruel and unusual punishment, and they look to a

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Speaker 2: decision of over sixty years ago called Robinson, in which

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Speaker 2: the Supreme Court held that the Eighth Amendment is indeed

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Speaker 2: violated or punishing what is known as a particular status.

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Speaker 2: So in that case it was the status of somebody

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Speaker 2: who was a drug addict. And the court reasons that

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Speaker 2: you can punish someone for taking drugs even if they

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Speaker 2: have a compulsion, even if they're addicted, but you can't

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Speaker 2: punish someone merely for having the status of being a

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Speaker 2: drug addict. And as applied to this case, mosteople think,

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Speaker 2: including the court below, that a criminal penalty for the

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Speaker 2: status of being homeless is clear violation of that Supreme

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Speaker 2: Court principle from years ago. And listening to the court

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Speaker 2: there was a variety of opinions that were expressed, But

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Speaker 2: I think that the Court is going to try to

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Speaker 2: dissolve the injunction on any number of theories, but not

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Speaker 2: say that it's okay to punish someone on basis being

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Speaker 2: homeless itself. There was some sympathy amongst the conservative justices

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Speaker 2: and clearly amongst the liberal justices for the plight of

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Speaker 2: the homeless, and that criminalizing the status is no way

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Speaker 2: to solve a problem. But that leaves a number of options.

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Speaker 1: So start with the question of the necessity defense. At

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Speaker 1: one point, just as the LANDA. Kaigan just said outright,

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Speaker 1: tell me about the necessity defense.

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Speaker 2: For one thing, it was interesting the focus in the argument,

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Speaker 2: which was to an end of hours on the necessity defense.

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Speaker 2: The necessity defense is a sort of a built into

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Speaker 2: most state codes of criminal law, including that Oregon, which

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Speaker 2: says that if you have a if it's a necessity

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Speaker 2: to do something like tying up a ship to some

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Speaker 2: private property in a storm, that one can do that

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Speaker 2: and not be convicted of a criminal offense. Why because

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Speaker 2: your preservation outweighs the importance of the property value. And

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Speaker 2: so the court was experimenting with the idea. One way

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Speaker 2: out is saying that organs a necessity defense would be

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Speaker 2: an individual ticket to escape any kind of criminal sanctions

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Speaker 2: if someone could prove that they had nowhere to sleep

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Speaker 2: and there wasn't a bed available in a nearby shelter,

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Speaker 2: So that was one way out. The Justice Department gave

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Speaker 2: another way out and stead that the class action and

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Speaker 2: the injunction was inappropriate because individual situation of all of

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Speaker 2: the plaintiffs had yet to be fleshed out. In other words,

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Speaker 2: according to the Justice Department, individuals would have to show

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Speaker 2: that they had nowhere to go before they could get relief,

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Speaker 2: and the court below didn't do that. They just granted

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Speaker 2: an injunction based upon the pleadings at the pleting stage

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Speaker 2: in a class action. To complicate the matter, one of

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Speaker 2: the three plaintiffs who had a criminal charge against her

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Speaker 2: had died tragically before this case went to the Supreme Court,

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Speaker 2: and so there may not be enough, according to the

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Speaker 2: Justice Department, enough of a live injury about the criminal

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Speaker 2: sanction to go before the court. So that was a

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Speaker 2: second way out. A third way out that the court

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Speaker 2: discussed was there's a new orgone law that has yet

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Speaker 2: to be administered or put into practice, which seems to

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Speaker 2: ban any kind of interdiction on what seems to prevent

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Speaker 2: criminalizing homelessness. And so if this law and effect is

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Speaker 2: an effect, why should the court bother to decide this

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Speaker 2: case or to allow the injunction blow to stand. So

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Speaker 2: it's difficult to know exactly where the Court's going, but

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Speaker 2: they seem to think, the conservative justices, that there's something

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Speaker 2: wrong with having courts administer these very complicated line drawing

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Speaker 2: policy of when sleeping outside is permitted and when it's

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Speaker 2: not permitted under the Constitution. And so I think they

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Speaker 2: leaned towards a way to getting.

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Speaker 1: Rid of the case, and several justices seem to suggest

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Speaker 1: that it was very difficult to draw those kinds of lines.

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Speaker 1: Coming up next on the Bloomberg Lawshell, I'll continue this

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Speaker 1: conversation with Professor Harold Krant to the Chicago Kent College

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Speaker 1: of law. Was there one thing that all the justices

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Speaker 1: seem to agree on. I'm June Grosso and you're listening

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Speaker 1: to Bloomberg. Today the Supreme Court wrestled with major questions

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Speaker 1: about the growing issue of homelessness as it considered whether

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Speaker 1: cities can punish people for sleeping outside when there's a

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Speaker 1: lack of shelter space in the community. It's the most

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Speaker 1: significant case before the High Court in decades on the issue.

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Speaker 1: I've been talking to Professor Harold Krant of the Chicago

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Speaker 1: Kent College of Law. It seemed like the questions of

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Speaker 1: most of the conservative justices indicated that they thought this

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Speaker 1: was not a problem for the courts to decide. And

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Speaker 1: the Chief said at one point, why do you think

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Speaker 1: these nine people are the best to judge this? So,

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Speaker 1: I mean that seemed very clear that they didn't think

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Speaker 1: that the court should be deciding policy.

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Speaker 3: No.

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Speaker 2: I agree that that concern was very expressedly clearly by

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Speaker 2: some members of the court. And the other related issue

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Speaker 2: to that is the injunction below creates a kind of

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Speaker 2: nightmare for the police because the police don't know whether

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Speaker 2: some a one is in an encampment. Who have they

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Speaker 2: checked to see whether there is an opening in a shelter.

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Speaker 2: Have they not checked is there an opening in the shelter?

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Speaker 2: Are they not going to the shelter because of mental illness?

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Speaker 2: Are they not going to the shelter because they fear

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Speaker 2: for their safety? And these kind of line drawing issues

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Speaker 2: that law enforcement officers face are very troubling and very difficult,

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Speaker 2: and so there is certainly, you know, empathy for that

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Speaker 2: difficulty which was triggered by the injunction. Nonetheless, I think

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Speaker 2: the Court will not disturb the precedent from sixty years

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Speaker 2: ago that says that their Eighth Amendment is violated by

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Speaker 2: he punishes status. So I think the Court will released

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Speaker 2: at least my prediction is in dicta suggests that punishing

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Speaker 2: homelessness is wrong, but it's also wrong to have this

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Speaker 2: injunction based upon the Eighth Amendment.

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Speaker 1: So, as you mentioned, there was a lot of because

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Speaker 1: of that Supreme Court decision, there was a lot of

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Speaker 1: talk about the difference between status and conduct, and there

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Speaker 1: was all kinds of things about the difference between being

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Speaker 1: a drug addict and being homeless. The Chief Justice said,

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Speaker 1: a number of US, I think are having difficulty with

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Speaker 1: the distinction between status and conduct. Where do you think

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Speaker 1: most of them came down on that.

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Speaker 2: I think most of the court recognized that the distinction

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Speaker 2: between status and conduct gets tricky. So give an easy

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Speaker 2: example from the oral argument. Yes, you may if you

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Speaker 2: have a right to sleep outside because you're homeless, that's

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Speaker 2: one thing. But then do you have a right to

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Speaker 2: have cooking gear? Do you have the right to have

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Speaker 2: a blanket or a tarp? Do you had then had

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Speaker 2: the right to urinate in public? And so on it

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Speaker 2: and the conduct, in other words, is so closely linked

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Speaker 2: to status that it's difficult to parse the two, and

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Speaker 2: it can be done. But I think the court's position

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Speaker 2: was they didn't want to be in the situation of

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Speaker 2: trying to say you could have a five foot by

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Speaker 2: six foot blanket but not an eight foot by ten

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Speaker 2: foot tarp. That these kinds of decision shouldn't be left

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Speaker 2: to the court based upon the Eighth Amendment, these sort

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Speaker 2: of differences of when conduct is so closely linked to

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Speaker 2: the stats of homelessness that it must be permitted. You know,

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Speaker 2: one other example, people said that you know, if you

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Speaker 2: if it's too far, you don't have to go to

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Speaker 2: an available homeless shelter. If it's thirty miles away, but

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Speaker 2: if there's one that's close by and they won't take

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Speaker 2: your dog, you don't have the right to do that.

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Speaker 2: I mean, still, all these kinds of application questions of

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Speaker 2: when conduct is linked to a status, it is problematic.

437
00:25:42,520 --> 00:25:45,320
Speaker 2: But I do think at the bottom mic I think

438
00:25:45,520 --> 00:25:48,919
Speaker 2: even a majority of the court will not disturb a

439
00:25:48,960 --> 00:25:52,520
Speaker 2: notion and may even support the notion that punishing someone

440
00:25:52,960 --> 00:25:56,880
Speaker 2: based upon the mere status of being homeless is does

441
00:25:56,960 --> 00:25:59,320
Speaker 2: violate the Constitution. But the question is what's the remant.

442
00:26:00,160 --> 00:26:03,800
Speaker 1: There was a lot of questioning from the conservatives, again,

443
00:26:04,320 --> 00:26:08,119
Speaker 1: especially the Chief. I remember one exchange he had about

444
00:26:08,320 --> 00:26:11,040
Speaker 1: if there's a shelter to go to over the county

445
00:26:11,080 --> 00:26:13,560
Speaker 1: line or whatever, do they have to go to that

446
00:26:13,600 --> 00:26:14,320
Speaker 1: shelter or not.

447
00:26:14,720 --> 00:26:19,000
Speaker 2: But the question really is twofold because in that issue,

448
00:26:19,359 --> 00:26:22,639
Speaker 2: many of the justices think that this town cannot shift

449
00:26:22,680 --> 00:26:26,920
Speaker 2: responsibility to a different town, that there's something wrong with

450
00:26:27,880 --> 00:26:31,520
Speaker 2: a city saying well, that's another city's problem, And obviously

451
00:26:32,200 --> 00:26:34,840
Speaker 2: Justice sort of mol said well, if all cities take

452
00:26:34,880 --> 00:26:38,000
Speaker 2: that position, we're never going to have any kind of

453
00:26:38,160 --> 00:26:44,280
Speaker 2: relief for the homeless. But based upon further questioning, I

454
00:26:44,280 --> 00:26:49,439
Speaker 2: think the attorneys, even for the almost coalition, seemed to

455
00:26:49,440 --> 00:26:53,040
Speaker 2: say if there was a close by shelter across a

456
00:26:53,240 --> 00:26:56,439
Speaker 2: town's lines, not a state lines, but across the town's lines,

457
00:26:57,119 --> 00:27:01,680
Speaker 2: that it would be sufficient to offer them the homeless

458
00:27:01,920 --> 00:27:05,840
Speaker 2: a position in a nearby shelter, even across some kind

459
00:27:05,840 --> 00:27:09,840
Speaker 2: of municipal boundaries. But again, the kind of line drawing

460
00:27:09,920 --> 00:27:14,000
Speaker 2: that this case raises, I think has given the court

461
00:27:14,520 --> 00:27:16,560
Speaker 2: a great deal of pause, and they want to try

462
00:27:16,600 --> 00:27:20,520
Speaker 2: to give a solution that's not heartless but nonetheless does

463
00:27:20,560 --> 00:27:25,280
Speaker 2: not mesh the court in these very messy details of

464
00:27:25,560 --> 00:27:30,760
Speaker 2: how best to effectuate a ban on some kind of

465
00:27:30,800 --> 00:27:34,920
Speaker 2: homelessness that is plaguing many of our towns across the country.

466
00:27:35,520 --> 00:27:39,199
Speaker 1: Does this statute criminalize being homeless?

467
00:27:40,640 --> 00:27:46,560
Speaker 2: It does, somewhat indirectly after several civil citations. Than under

468
00:27:46,600 --> 00:27:51,639
Speaker 2: this ordinance someone is subject to a criminal violation, and

469
00:27:51,720 --> 00:27:55,480
Speaker 2: indeed the civil penalties or something like three hundred dollars

470
00:27:55,520 --> 00:27:59,000
Speaker 2: for the first violation, so it's very steep. So there

471
00:27:59,119 --> 00:28:02,240
Speaker 2: was questions about even whether this would violate the excessive

472
00:28:02,280 --> 00:28:04,960
Speaker 2: fines part of the Eighth Amendment, but the court below

473
00:28:05,000 --> 00:28:07,280
Speaker 2: did not answer that, and so the parties did not

474
00:28:07,440 --> 00:28:11,560
Speaker 2: urge the court to reach that issue at this particular time,

475
00:28:12,200 --> 00:28:16,520
Speaker 2: but they, I think even our lawyer for the grants

476
00:28:16,560 --> 00:28:21,000
Speaker 2: past the town agreed that under the ordinances applied, criminal

477
00:28:21,080 --> 00:28:22,800
Speaker 2: penalties were available.

478
00:28:23,640 --> 00:28:28,480
Speaker 1: There was talk about the danger of having people sleep outside.

479
00:28:28,800 --> 00:28:31,879
Speaker 1: And when the Supreme Court addressed homelessness the last time

480
00:28:32,359 --> 00:28:36,320
Speaker 1: it upheld a National Park Service rule that prohibited sleeping

481
00:28:36,359 --> 00:28:41,080
Speaker 1: in parks around Washington. Correct, So might they say, well,

482
00:28:41,320 --> 00:28:44,960
Speaker 1: laws like this are to protect the health and safety

483
00:28:44,960 --> 00:28:45,760
Speaker 1: of the community.

484
00:28:46,240 --> 00:28:49,760
Speaker 2: It's true that the best solution is not to allow

485
00:28:49,840 --> 00:28:55,680
Speaker 2: homelessness to give and create work, enough, free food, enough options.

486
00:28:55,840 --> 00:28:59,120
Speaker 2: So there is homelessness, and I think everybody in the

487
00:28:59,160 --> 00:29:02,400
Speaker 2: court would want to to see that too, for that

488
00:29:02,440 --> 00:29:05,880
Speaker 2: to happen, you know. But you know, in this case,

489
00:29:06,200 --> 00:29:09,720
Speaker 2: I don't think the former the National Park Service president

490
00:29:10,120 --> 00:29:14,080
Speaker 2: really covers this instance because as the court all everybody

491
00:29:14,080 --> 00:29:16,560
Speaker 2: agreed there could be like a time placed manner restrictions

492
00:29:16,880 --> 00:29:19,600
Speaker 2: on public camping, when when you can go, when you

493
00:29:19,600 --> 00:29:23,920
Speaker 2: can public camp, and where you can public camp, and

494
00:29:24,000 --> 00:29:26,960
Speaker 2: whether whether you can leave items or even cooking gear

495
00:29:27,440 --> 00:29:29,600
Speaker 2: at your camp. Everybody seemed to think that that would

496
00:29:29,600 --> 00:29:32,680
Speaker 2: be you know, appropriate at a minimum, that would be appropriate.

497
00:29:33,680 --> 00:29:36,479
Speaker 2: But the real question is at the at the end

498
00:29:36,480 --> 00:29:41,800
Speaker 2: of the day, is can you criminalize people don't have

499
00:29:41,840 --> 00:29:46,280
Speaker 2: a home for living in the public when, as the

500
00:29:46,560 --> 00:29:49,480
Speaker 2: Justice is said, you know, you have to breathe, you

501
00:29:49,560 --> 00:29:52,200
Speaker 2: have to leave somewhere. That's part of being alive, and

502
00:29:52,200 --> 00:29:54,960
Speaker 2: if you don't, you're not alive. And so with that

503
00:29:55,080 --> 00:29:58,840
Speaker 2: kind of status or that kind of incredible importance, I

504
00:29:58,880 --> 00:30:02,360
Speaker 2: think the Court must recognize that, even if it tries

505
00:30:02,440 --> 00:30:07,760
Speaker 2: to get out of the difficult position, it has found

506
00:30:07,800 --> 00:30:10,800
Speaker 2: itself in trying to make these very tough lines that

507
00:30:10,840 --> 00:30:12,280
Speaker 2: it doesn't feel qualified to make.

508
00:30:12,760 --> 00:30:17,880
Speaker 1: So you'd think that all the justices or nearly all

509
00:30:17,960 --> 00:30:23,360
Speaker 1: the justices would be against criminalizing homelessness, and then there

510
00:30:23,400 --> 00:30:25,200
Speaker 1: might be splits from that point.

511
00:30:25,800 --> 00:30:28,480
Speaker 2: That is my sense. It's obviously difficult, but I think

512
00:30:28,520 --> 00:30:33,600
Speaker 2: the Court was so interested in ways to try to

513
00:30:33,720 --> 00:30:38,440
Speaker 2: avoid deciding this case, and we talked about three or earlier,

514
00:30:39,600 --> 00:30:44,280
Speaker 2: that what's motivating them is the difficulty of trying to

515
00:30:44,320 --> 00:30:48,800
Speaker 2: say it's constitutional to ban homelessness, and I think that

516
00:30:49,000 --> 00:30:53,440
Speaker 2: they would be disingenuous if they held that without overturning

517
00:30:53,800 --> 00:30:58,320
Speaker 2: that sixty two year old Robinson decision. And all of

518
00:30:58,360 --> 00:31:02,080
Speaker 2: the lawyers said the court, we don't want to overturn Robinson.

519
00:31:02,680 --> 00:31:05,760
Speaker 2: And if all the lawyers saying don't overturn Robinson is

520
00:31:05,840 --> 00:31:08,240
Speaker 2: you know, that puts even more pressure on the court.

521
00:31:08,320 --> 00:31:11,280
Speaker 2: And I think Chief Justice Roberts tried to say Robinson

522
00:31:11,360 --> 00:31:15,400
Speaker 2: is different. I think that that's incredibly disingenuous. It's I

523
00:31:15,400 --> 00:31:18,160
Speaker 2: think this is a stronger case than Robinson because again

524
00:31:18,200 --> 00:31:21,840
Speaker 2: and Robinson, we're talking about the status of something being

525
00:31:21,840 --> 00:31:25,440
Speaker 2: addicted to drugs, and you know, obviously there was a

526
00:31:25,480 --> 00:31:28,080
Speaker 2: criminal offense that led up to that. In this case,

527
00:31:28,360 --> 00:31:30,960
Speaker 2: it's like, you know, a ban on having COVID or

528
00:31:30,960 --> 00:31:35,080
Speaker 2: a ban on breathing or and so the ban on

529
00:31:35,120 --> 00:31:38,960
Speaker 2: homelessness itself, I think is much is much more difficult

530
00:31:39,040 --> 00:31:41,440
Speaker 2: to accept even then the ban on being the status

531
00:31:41,520 --> 00:31:45,080
Speaker 2: of a drug addict in Robinson. So if Robinson stands,

532
00:31:45,400 --> 00:31:48,320
Speaker 2: I think the Court either is going to be disingenuous,

533
00:31:48,400 --> 00:31:50,800
Speaker 2: which of course has happened, or it's going to try

534
00:31:50,800 --> 00:31:53,920
Speaker 2: to find a way to get out of this case

535
00:31:54,200 --> 00:31:56,360
Speaker 2: without having to make a pronouncement.

536
00:31:56,840 --> 00:32:00,240
Speaker 1: Is the Ninth Circuit the only circuit that has taking

537
00:32:00,360 --> 00:32:01,800
Speaker 1: up this issue.

538
00:32:02,680 --> 00:32:07,800
Speaker 2: To my knowledge, the vin Silver has taken it up twice,

539
00:32:07,960 --> 00:32:10,280
Speaker 2: and I do think there's there's many cases that are

540
00:32:10,320 --> 00:32:13,760
Speaker 2: not percolating in other circuits that just haven't become filing yet,

541
00:32:13,800 --> 00:32:17,560
Speaker 2: because you know, the more recent case has signaled to

542
00:32:18,240 --> 00:32:24,160
Speaker 2: housing coalitions elsewhere that it's appropriate and indeed wise to

543
00:32:24,520 --> 00:32:28,120
Speaker 2: challenge any kind of criminalization of the homelessness. And these

544
00:32:28,120 --> 00:32:31,320
Speaker 2: cases at first started percolating I think since the early

545
00:32:31,360 --> 00:32:35,520
Speaker 2: two thousands in the Los Angeles case, and obviously California

546
00:32:35,560 --> 00:32:37,440
Speaker 2: head in the West Coast has seen some of the

547
00:32:37,520 --> 00:32:42,840
Speaker 2: worst of public camping. But obviously that's not only in California,

548
00:32:42,880 --> 00:32:46,480
Speaker 2: and there's a lot of people who camp on the

549
00:32:46,480 --> 00:32:49,160
Speaker 2: streets in public spaces, you know, all over the country.

550
00:32:49,480 --> 00:32:52,240
Speaker 2: So this case I think is important. It should take

551
00:32:52,240 --> 00:32:57,160
Speaker 2: a lot of eyeballs across the country. I think the

552
00:32:57,200 --> 00:32:59,480
Speaker 2: coach is going to wrestle with what to do again,

553
00:32:59,640 --> 00:33:01,840
Speaker 2: simply because at the end of the day, I don't

554
00:33:01,840 --> 00:33:04,880
Speaker 2: think they want to write an opinion that says it's

555
00:33:04,960 --> 00:33:08,640
Speaker 2: consistent with the Constitution to criminalize homelessness.

556
00:33:09,000 --> 00:33:12,720
Speaker 1: You know, speaking of eyeballs and importance, I mean this

557
00:33:12,800 --> 00:33:16,240
Speaker 1: week alone, you have this case, you have the case

558
00:33:16,320 --> 00:33:20,960
Speaker 1: on the Idaho abortion ban, you have the Trump presidential

559
00:33:21,000 --> 00:33:24,800
Speaker 1: immunity case. Does it seem like the Court is tackling

560
00:33:24,840 --> 00:33:27,840
Speaker 1: more controversial issues this term than before.

561
00:33:28,240 --> 00:33:31,400
Speaker 2: It's hard to catalog and making a comparison from term

562
00:33:31,440 --> 00:33:34,600
Speaker 2: to term. And indeed, I don't think anybody would have

563
00:33:34,680 --> 00:33:36,720
Speaker 2: known at the beginning of the term. You certainly would

564
00:33:36,800 --> 00:33:40,040
Speaker 2: have known about the presidential immunity issue the Court now

565
00:33:40,480 --> 00:33:47,120
Speaker 2: must wrestle with. And I think the Idaho care case similarly,

566
00:33:47,200 --> 00:33:49,720
Speaker 2: one wouldn't have predicted a year ago that that would

567
00:33:49,760 --> 00:33:52,000
Speaker 2: be before the Court. So some of this has come

568
00:33:52,040 --> 00:33:55,440
Speaker 2: because of late breaking developments doing no small part of

569
00:33:55,440 --> 00:33:58,640
Speaker 2: the Supreme Court's own actions, but nonetheless it has become

570
00:33:59,000 --> 00:34:02,760
Speaker 2: much more of a controversial haphly contested on docket.

571
00:34:02,920 --> 00:34:06,120
Speaker 1: It's going to be a very very interesting week. Thanks

572
00:34:06,120 --> 00:34:08,800
Speaker 1: so much. How that's Professor Harold Krant of the Chicago

573
00:34:08,880 --> 00:34:11,719
Speaker 1: kan College of Law. And that's it for this edition

574
00:34:11,719 --> 00:34:14,759
Speaker 1: of the Bloomberg Law Podcast. Remember you can always get

575
00:34:14,800 --> 00:34:17,480
Speaker 1: the latest legal news by subscribing and listening to the

576
00:34:17,560 --> 00:34:21,600
Speaker 1: show on Apple Podcasts, Spotify, and at Bloomberg dot com

577
00:34:21,600 --> 00:34:25,840
Speaker 1: Slash podcast Slash Law. I'm June Grosso and this is

578
00:34:25,880 --> 00:34:26,480
Speaker 1: Bloomberg