Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 2: We did it, We did it.
Speaker 1: Cheers in Ohio last night, a Republican state where voters
Speaker 1: approved a ballot measure to enshrine the right to an
Speaker 1: abortion in the state constitution that gives abortion rights a
Speaker 1: seven to zero winning streak on state ballots since the
Speaker 1: Supreme Court overturned Roe v. Wade. Abortion rights may not
Speaker 1: have been on the ballot in other states, but it
Speaker 1: was the driving issue in races in Kentucky and Virginia,
Speaker 1: where it trounced the opposition, beating back an attempted reframing
Speaker 1: of the issues by Republicans.
Speaker 2: Thank you.
Speaker 1: Kentucky Democratic Governor Andy Basher resoundingly won reelection in the
Speaker 1: red state of Kentucky. His opponent, Republican Attorney General Daniel Cameron,
Speaker 1: was endorsed by Trump and parted the state's near total
Speaker 1: ban on abortion, while Basher placed abortion rights front and
Speaker 1: center in his campaign.
Speaker 2: Kentucky made a choice, a choice not to move to
Speaker 2: the right or to the left, but to move forward.
Speaker 2: For every single family.
Speaker 1: Joining me is Mary Ziegeler, a professor at UC Davis
Speaker 1: Law School. Her new book is Roe the history of
Speaker 1: a national obsession. Mary, was the twenty twenty three election
Speaker 1: cycle a big test for the question of whether protecting
Speaker 1: abortion rights wins elections?
Speaker 2: Yeah?
Speaker 3: Absolutely. I mean, I think there was already a lot
Speaker 3: of evidence that protecting abortion rights wins elections. But I
Speaker 3: think any doubt on that matter was resolved pretty decisively.
Speaker 1: So Ohio, fifty seven percent of Ohio voters cast their
Speaker 1: ballot in favor of the constitutional amendment to codify abortion access,
Speaker 1: despite a significant array of obstacle goals in a red state,
Speaker 1: purging of twenty six thousand people on the voter rolls,
Speaker 1: and the Republican Secretary of State who was anti abortion,
Speaker 1: changed the language on the ballot measure referring to a
Speaker 1: fetus as an unborn child. Tell us about the obstacles
Speaker 1: that Republicans put in the way of this constitutional amendment.
Speaker 3: There have been a lot of obstacles. Republicans began by
Speaker 3: trying to lift the threshold for passage of a ballot initiative,
Speaker 3: and that proposal was defeated by Ohio voters in August.
Speaker 3: There's been information published on official government websites in Ohio
Speaker 3: giving a misleading account of what issue on the ballot
Speaker 3: initiative would have meant there's been the you know, the
Speaker 3: language anti worsion, language used to describe what voters were choosing.
Speaker 3: And yet, you know, despite all of that, there's been
Speaker 3: pulling on the ballot initiative actually been pretty remarkably consistent
Speaker 3: for some time now, so voters had made up their
Speaker 3: and all of these various strategies by Republicans didn't work.
Speaker 1: Yeah, and also making it a no vote in August
Speaker 1: but a yes vote in November. It seems like the
Speaker 1: Republicans were just trying to sow confusion rather than waning
Speaker 1: on the issue.
Speaker 3: Yeah, I mean, I think that's one of the things
Speaker 3: that's striking. There hasn't really been an effort in Ohio
Speaker 3: to convince voters that abortion rights were a bad idea
Speaker 3: on the merits. Instead, there have been efforts to stop
Speaker 3: voters either from understanding the issue or deciding it. And
Speaker 3: that obviously tells you Ohio Republicans were in trouble. Right,
Speaker 3: if you yourself conceived that your position is that unpopular,
Speaker 3: you're not starting from a position of strength.
Speaker 1: So Susan B. Anthony Pro Life America group is saying
Speaker 1: it lost in Ohio because voters incorrectly believe pregnant patients
Speaker 1: could be denied life saving medical care. What do you
Speaker 1: think of the response of the anti abortion groups to this.
Speaker 3: I mean, I think that you're seeing a lot of excuses. Really.
Speaker 3: I mean, I think that if you have lost seven
Speaker 3: of seven valid initiative fights, the idea that that's all
Speaker 3: based on voters misunderstanding of the issues isn't really a
Speaker 3: credible explanation. I mean, I think it's certainly true that
Speaker 3: the workings of abortion bands have been consequential in the
Speaker 3: sense that physicians aren't comfortable applying exceptions to people with
Speaker 3: wanted pregnancies who are in life threatening situations. But I think,
Speaker 3: by the same token, if you've lost seven of seven
Speaker 3: valid initiative races in the space of a year, the
Speaker 3: problem is not just packaging or funding that the problem
Speaker 3: is substance, and I think that's becoming increasingly clear.
Speaker 1: You mentioned the seven to zero winning street on the
Speaker 1: ballot initiative since Roe was overturned. What have the abortion
Speaker 1: rights advocates been doing to be so effective?
Speaker 3: I mean, I think, first of all, they have the
Speaker 3: advantage of what Republicans are doing in a lot of states, right,
Speaker 3: So Republicans in Virginia, for example, tried to say, oh, hey,
Speaker 3: you know, the Democrats are extreme because they don't want
Speaker 3: there to be any restrictions on abortion. And it's been
Speaker 3: easy for Democrats to carry that attack by pointing to
Speaker 3: the bands that are actually on the books and large
Speaker 3: spots of the country that are not, you know, moderate
Speaker 3: compromises at all. I think the other thing that abortion
Speaker 3: rights supporters have done relatively well is to realize that
Speaker 3: ballot initiatives are very much the politics of the local
Speaker 3: So a message that will work in Ohio will not
Speaker 3: necessarily work in California or Kansas. That you have to
Speaker 3: tailor what you're saying, how you write your valid initiative,
Speaker 3: what arguments you make for it, to the audience in
Speaker 3: that state. And I think that's been pretty successfully done
Speaker 3: too so far.
Speaker 1: So you mentioned Virginia, and it seemed like anti abortion
Speaker 1: leaders were testing some new tactics this cycle rebranding. They
Speaker 1: didn't call them abortion bands, but rather limits. And you
Speaker 1: mentioned fear mongering about Democrats wanting abortion up until birth,
Speaker 1: and it seemed like Virginia Governor Glenn Youngkin used those
Speaker 1: tactics in his campaign to try to get Republican control
Speaker 1: of both state houses, which of course failed. How important
Speaker 1: was the abortion issue there, even though it wasn't on
Speaker 1: the ballot.
Speaker 3: It was pretty important. I mean, I think Governor Youngkin
Speaker 3: was on the record as saying that he was piloting
Speaker 3: what he saw as a potential way forward for Republicans
Speaker 3: on abortion in every state, and that was to go
Speaker 3: on the offense and essentially accuse Democrats of being the
Speaker 3: real extremists on abortion and using, like you said, a limit,
Speaker 3: as Youngin would have framed it to rally Republicans around,
Speaker 3: and that obviously didn't work, and if anything, it seemed
Speaker 3: that the abortion issue helped Democrats, I think, achieve a
Speaker 3: surprisingly good result in Virginia and taking control of both
Speaker 3: houses of the Virginia Legislature. And I think, you know,
Speaker 3: the reason it didn't work is because I think Youngin,
Speaker 3: using an old playbook before Roe was gone, Republicans would
Speaker 3: hold up, you know, regulations that were popular in isolation,
Speaker 3: like a fifteen week ban or a ban on so
Speaker 3: called partial birth abortion, and say, you know, aren't you
Speaker 3: for this voters, And a lot of voters would say, sure,
Speaker 3: you know, that sounds reasonable. But now when Democrats say
Speaker 3: that isn't really what where Glenn Youngkin wants to stop.
Speaker 3: That's as much as he thinks he can get today.
Speaker 3: But tomorrow he's going to come back and ask for
Speaker 3: a six week ban or a ban at fertilization. That
Speaker 3: argument has a lot more credibility with voters because, of course,
Speaker 3: you know, anti abortion activists are admitting as much, anti
Speaker 3: abortion politicians are admitting as much. There's many state bans
Speaker 3: that already go that far. So when Youngkin claims to
Speaker 3: be the voice of moderation and reason, it doesn't have
Speaker 3: the same force it would have before Dobbs. So I
Speaker 3: think that's one of the reasons that strategy didn't actually
Speaker 3: play out as Youngkin had planned.
Speaker 1: Younkin was pushing this fifteen week abortion ban, why Republicans
Speaker 1: think that that's a compromised position that would be acceptable.
Speaker 3: I think where they're getting fifteen weeks is a combination
Speaker 3: of that's just what Dobbs upheld. So it's had some
Speaker 3: sort of resonance for Republicans for that reason, and also
Speaker 3: because there are polls suggesting that as much as Americans
Speaker 3: support for abortion throughout pregnancy has continued in recent years
Speaker 3: that there's still less support later rather than earlier in pregnancy,
Speaker 3: and so I think what you're seeing is Republicans trying
Speaker 3: to leverage that and say, you know, we're going to
Speaker 3: focus on a ban at a point where think Americans
Speaker 3: will be more on board, and we're going to say
Speaker 3: that that's actually our focus rather than a ban from fertilization,
Speaker 3: And they're expecting people to credit that right. And I
Speaker 3: think again, the problem is not it's twofold. And one,
Speaker 3: I think fewer Americans support a ban at fifteen weeks
Speaker 3: than would have been the case several years ago. And two,
Speaker 3: you're seeing the fact that voters just don't believe that
Speaker 3: Republicans are actually interested in a fifteen week ban. They
Speaker 3: see a fifteen week ban as a sort of compromise
Speaker 3: that Republicans are forging at the moment because they can't
Speaker 3: get anything more than that, but that they would go
Speaker 3: much further in banning abortion if they had the opportunity.
Speaker 1: Coming up next, i'll continue this conversation with UC Davis
Speaker 1: professor Mary Ziegler. Will there be more constitutional amendments to
Speaker 1: protect access to abortion on the ballots in other states?
Speaker 1: In twenty twenty four, and attempts to stop travel out
Speaker 1: of state to get an abortion. Abortion rights may not
Speaker 1: have been on the ballot, but it was the driving
Speaker 1: issue in races in Kentucky and Virginia, where it trounced
Speaker 1: the opposition. In Kentucky, a state that Trump won by
Speaker 1: twenty six points, voters resoundingly re elected Democratic Governor Andy Basheer.
Speaker 1: He won over Trump endorsed Republican Attorney General Daniel Cameron,
Speaker 1: who supports the states near total ban on abortion. Sheer
Speaker 1: placed abortion rights front and center in his campaign and
Speaker 1: ran a sharp attack ad against Cameron where a woman
Speaker 1: described being raped by her stepfather when she was twelve.
Speaker 4: This is to you, Daniel Cameron. To tell a twelve
Speaker 4: year old girl she must have the baby of her
Speaker 4: stepfather who raped her is unthinkable. I'm speaking out because
Speaker 4: women and girls need to have options. Daniel Cameron would
Speaker 4: give us none.
Speaker 1: I've been talking to Mary Ziegler, a professor at UC
Speaker 1: Davis Law School. Mary, what do you think of the
Speaker 1: use of attack ads like that?
Speaker 3: Well, I think what you're seeing in the fight between
Speaker 3: Cameron and Sheer is sort of the mirror image of
Speaker 3: what happens when you try to do the opposite of
Speaker 3: what Glenn Youngkin did. So, at least at the beginning
Speaker 3: of his campaign, Daniel Cameron said, I'm not going to
Speaker 3: run away from my position on abortion. I'm going to
Speaker 3: make it part of my campaign. I'm going to emphasize
Speaker 3: that I've been in court, I've been the one fighting
Speaker 3: for Kentucky's abortion band like I'm mister anti abortion right.
Speaker 3: And Dasher was to have him do that, because then
Speaker 3: Basher could say, you know, I am the voice of
Speaker 3: reason right and not even really have to get into
Speaker 3: questions about abortion that would be tricky in Kentucky.
Speaker 4: Right.
Speaker 3: He could focus on things like victims of sexual assault
Speaker 3: and accuse Cameron of being heartless toward those patients and
Speaker 3: leave any of the trickier questions in a red state
Speaker 3: like Kentucky off the table. So I think the lesson
Speaker 3: is that whether you're trying to strike a kind of
Speaker 3: faux moderate tone like Youngkin, or you're trying to, you know,
Speaker 3: run to energize the base, which I think is what
Speaker 3: Cameron was doing, that there are perils either way, and
Speaker 3: that's I think what we saw yesterday.
Speaker 1: Constitutional amendments to protect abortion access are already on the
Speaker 1: ballot for twenty twenty four in Maryland and New York.
Speaker 1: What other states do you see there's momentum to put
Speaker 1: abortion rights on the ballot next year.
Speaker 3: Only the most consequential is Florida. As you mentioned, New
Speaker 3: York and Maryland are not in any real jeopardy of
Speaker 3: changing their abortion policy significantly absent the constitutional amendment, So
Speaker 3: those would be more along the lines of proposals you've
Speaker 3: seen in states like California or Vermont, where you're expanding
Speaker 3: on existing protections. Florida has a very conservative state Supreme
Speaker 3: Court that is likely to overturn a nineteen eighty nine
Speaker 3: precedent recognizing state of worshi rights, So absent intervention by voters,
Speaker 3: you're likely to see Florida's six weekman go into effect
Speaker 3: in the not too distant future. Florida is more complicated
Speaker 3: simply because well, there are two reasons. One, Florida has
Speaker 3: a sixty percent threshold for passing ballid initiatives, and second,
Speaker 3: there's already a challenge before the Florida Supreme Court, which
Speaker 3: as I mentioned, is very conservative, by the Attorney General
Speaker 3: actually Moody that's attempting to get that issue off the
Speaker 3: ballot by essentially arguing it's confusing to voters. So this
Speaker 3: is another kind of parallel to what we saw in Ohio,
Speaker 3: where Republicans are trying to keep voters from weighing in,
Speaker 3: but this time they're relying on a very conservative state
Speaker 3: Supreme Court, which may be a more successful strategy.
Speaker 1: Do you see any sort of cracks in the abortion
Speaker 1: activists arguments or you know, the way they're framing things
Speaker 1: or campaign that Republicans or abortion opponents could use in
Speaker 1: twenty twenty four to defeat ballot measures or to defeat
Speaker 1: pro abortion candidates.
Speaker 3: I mean, I think the cracks mostly are at the
Speaker 3: federal level, right, So I think the person who's on
Speaker 3: the Republican side who's played the abortion issue the best
Speaker 3: so far as Donald Trump. Now, you know, you can't
Speaker 3: praise Donald Trump too much for it, because he's in
Speaker 3: the enviable position of basically having a glide path to
Speaker 3: the nomination regardless of what he says about abortion. So
Speaker 3: he quite simply just doesn't need to worry about offending
Speaker 3: primary voters on abortion because he's going to win the
Speaker 3: nomination anyway. But I think Trump has convinced a lot
Speaker 3: of Americans. I think inaccurately, in my view, that he
Speaker 3: really isn't actually going to do anything on abortion in office,
Speaker 3: and that he thinks it would be a mistake to
Speaker 3: do so. And I think, you know, there are plenty
Speaker 3: of things Trump would and I think could do without
Speaker 3: Congress were he to be elected again. And I think
Speaker 3: that's probably the best move Republicans can make, to either
Speaker 3: lie or rely on courts, as you're seeing in Florida,
Speaker 3: essentially takes the ball to another court and blame the
Speaker 3: courts for whatever's going to happen on abortion. I think
Speaker 3: the idea that the question is about fundraising or messaging,
Speaker 3: as various Republican candidates have suggested, kind of misses the point.
Speaker 1: Well, Trump at one point was taking credit for turning
Speaker 1: the Supreme Court so conservative and for a point to
Speaker 1: sing justices who were anti abortion.
Speaker 3: Yeah. Absolutely. And I mean the other thing, too, obviously,
Speaker 3: is like if you just think about how Donald Trump
Speaker 3: usually operates, it's based on self interest. So at the moment,
Speaker 3: it's in his self interest to say that abortion is,
Speaker 3: you know, an issue that Republicans need to compromise on
Speaker 3: because Trump needs to get into office. But when Trump
Speaker 3: is in office, the calculus will be very different, right.
Speaker 3: I mean, he'll be still looking to raise money from
Speaker 3: voters who like him, as he has pretty much his
Speaker 3: entire time out of office. He'll be looking for close
Speaker 3: allies to join him in his effort to transform the
Speaker 3: DOJ and pursue vendettas against political enemies. He may be
Speaker 3: looking for ways to stay in power after his twenty
Speaker 3: twenty four term is up. And in all of that,
Speaker 3: it's going to make more sense for him to try
Speaker 3: to energize and strengthen ties to the base than it
Speaker 3: would to, you know, essentially appeal to general voters who
Speaker 3: are not going to be interested in his revenge campaign
Speaker 3: or his staying in office permanently. So I think that's
Speaker 3: a big part of why you have to take Trump's
Speaker 3: current positioning on this with a grain of salt.
Speaker 1: It's been more than a year since the Supreme Court
Speaker 1: overturned Row and abortion is almost completely outlawed in fifteen states,
Speaker 1: Yet the number of abortions done in the US has,
Speaker 1: by some estimates, fallen by only about twenty nine hundred
Speaker 1: procedures per month. Is that due to the abortion pill?
Speaker 3: Yeah, I mean, I think that the data we have
Speaker 3: so far suggests either that patients are crossing state lines
Speaker 3: to get abortions. Essentially, you know, the abortion rate in
Speaker 3: states adjacent to BAND states has gone up significantly, and
Speaker 3: they're getting abortion pills online, so part of you know,
Speaker 3: the other thing that's interesting is that the GOP is
Speaker 3: really damaging its cause by going to the wall for
Speaker 3: these bands, and then ultimately the bands aren't even working
Speaker 3: to lower the rate of ortion, and.
Speaker 1: Abortion opponents in some states are trying to find ways
Speaker 1: to limit a woman's ability to leave the state to
Speaker 1: access abortion, relying on novel legal strategies and targeting those
Speaker 1: who assist pregnant women in traveling for care. For example,
Speaker 1: Alabama's attorney general declared that his office had the power
Speaker 1: to prosecute people who help residents leave the state for
Speaker 1: an abortion by using criminal conspiracy laws, and a handful
Speaker 1: of counties in Texas have passed ordinances outlawing using their
Speaker 1: roads to drive somewhat out of state for an abortion.
Speaker 1: Do you think any of these kinds of measures would
Speaker 1: survive a legal challenge.
Speaker 3: I mean, I don't know, right, and I think this
Speaker 3: is the potential ace in the hole for Republicans that
Speaker 3: if they don't have voters, they may have the courts.
Speaker 3: Because some of these questions about the full phrasing, credit, cause,
Speaker 3: and the right to travel, I think many of these
Speaker 3: laws would be unconstitutional. But I also acknowledged that a
Speaker 3: lot of these areas of law are really underdeveloped and
Speaker 3: that there haven't been courts who've weighed in on these
Speaker 3: questions for decades, And so that means that there are
Speaker 3: possibilities that you could get conservative federal judges to side
Speaker 3: with you when voters will not. And I think that's
Speaker 3: really kind of the wild card, one whether courts will
Speaker 3: do that, and two whether Donald Trump can get into
Speaker 3: office as polls suggest he will and then achieve outcomes
Speaker 3: that voters would reject just using the executive branch power alone.
Speaker 1: These laws are also designed to frighten people, not to
Speaker 1: help people get abortions. Have doctors been delaying or denying
Speaker 1: care even in states with exceptions to abortion bans.
Speaker 3: Absolutely, I mean in states with abortion bans, we've seen
Speaker 3: a lot of doctors hesitating to provide care, even in
Speaker 3: cases where they would have a very good argument that
Speaker 3: they could act without legal penalty, because the downsides of
Speaker 3: being wrong are so significant, right, they're like up to
Speaker 3: life in prison. So and physicians as a group are not,
Speaker 3: you know, particularly risk tolerant. Right, There's a group of
Speaker 3: people who have invested a lot in managing risk and
Speaker 3: in their own careers who are not interested in jeopardizing.
Speaker 4: All of that.
Speaker 1: So many unanswered questions in this area. Thanks so much, Mary.
Speaker 1: That's Mary Ziegler, a professor at UC Davis Law School.
Speaker 1: Coming up, Well, John Eastman lose his license to practice law.
Speaker 1: This is bloomberg. Ah, we are demanding a vice president.
Speaker 4: Pence is this afternoon at one o'clock.
Speaker 1: He let the legislators of the state look into this.
Speaker 5: So we get to the bottom of it and the
Speaker 5: America people know whether we have control of the director
Speaker 5: of our government or not.
Speaker 1: That was Trump attorney John Eastman at the rally on
Speaker 1: January sixth, before the march to the Capitol. He was
Speaker 1: one of the chief architects of Trump's failed efforts to
Speaker 1: overturn the twenty twenty presidential election, and he's one of
Speaker 1: the eighteen defendants charged along with Trump with racketeering for
Speaker 1: their efforts to overturn the election in Georgia. Eastman is
Speaker 1: also fighting to retain his law license in California. There
Speaker 1: have been thirty three days of trial in the California
Speaker 1: State Bar Court, the nation's only court devoted entirely to
Speaker 1: lawyer discipline, and more than eight hundred exhibits have been submitted.
Speaker 1: The Bar's eleven count notice of discipline includes charges that
Speaker 1: Eastman violated ethical and legal obligations for allegedly conspiring with
Speaker 1: Trump to disrupt the electoral count on January sixth. Among
Speaker 1: the claims is that Eastman pressured then Vice President Mike
Speaker 1: Pence to violate the law and override every branch of
Speaker 1: government by throwing out electoral votes. Eastman claims he had
Speaker 1: a good faith buil to doubt the results of the
Speaker 1: election and a First Amendment right to speak out as
Speaker 1: a private citizen. Joining me is Joyce Cutler, a correspondent
Speaker 1: for Bloomberg Law. So what started this action by the
Speaker 1: California Bar?
Speaker 5: There is a complaints file against John Eastman. Among them
Speaker 5: were twelve hundred attorneys former judges for violating California ethical
Speaker 5: and bar rules. There are several complaints against him, goes
Speaker 5: back in a large part to his actions last in
Speaker 5: the fall of twenty nineteen and into twenty twenty. There
Speaker 5: are comments made that he made to podcast Bannon's war room.
Speaker 5: There were comments he made to the rally on January
Speaker 5: sixth at the Ellipse. There were memos that he wrote,
Speaker 5: two memos he wrote for the Trump campaign. There were
Speaker 5: comments he made about the dominion electronic votings, about emails
Speaker 5: he made to Vice President make Fence's chief counsel, miss
Speaker 5: representations in an article a publication called The American Mind
Speaker 5: regarding alleged fraud in Georgia and Michigan. They all had
Speaker 5: to do with his conduct or comments he made while
Speaker 5: basically acting as a lawyer.
Speaker 1: So he took the stand. Tell us basically, what was
Speaker 1: his argument. He seemed to be saying that, you know,
Speaker 1: what he did was legal.
Speaker 5: Yeah, he said several things. One, he was in good
Speaker 5: conscious acting as a zealous advocate for his client Trump
Speaker 5: and the Trump campaign. And he said he was giving
Speaker 5: legal advice, and attorneys should be able to freely give
Speaker 5: legal advice, all forms of it, when you're laying out
Speaker 5: all sorts of scenarios, and should be able to do
Speaker 5: that without being prosecuted. He also said he had a
Speaker 5: First Amendment right to stand up and make those comments.
Speaker 5: On January sixth under the First Amendment.
Speaker 1: So there were what thirty three days of trial? Who
Speaker 1: was would you say, the best witness against him then for.
Speaker 5: Constitutional scholar the name of Matthew Grimmer. He had some
Speaker 5: really impressive testimony about there is no foundation for Eastman's arguments,
Speaker 5: there's no legal basis for alternate electors theory, there is
Speaker 5: nothing in constitutional law, in the Constitution, in the law anywhere.
Speaker 5: Matthew Seligman is a fellow at the Constitutional Law Center
Speaker 5: Stanford Law School, and he said there's nothing in the
Speaker 5: twelfth Amendment or elsewhere in legal principles to back up
Speaker 5: his theories. And Eastman was known as a constitutional a
Speaker 5: conservative constitution law scholar as well, So that you had
Speaker 5: someone who was his equal, shall we say, come up
Speaker 5: with an argument saying there's nothing there was interesting. It
Speaker 5: was also something that they kept coming back to during
Speaker 5: the trial.
Speaker 1: And the best witness for Eastman.
Speaker 5: Was John Hugh john uc Berkeley law professor, also a
Speaker 5: conservative law scholar. He was best known for writing what
Speaker 5: was called the Torture Memos during the Bush and imstration.
Speaker 5: And he's been a friend with Johnny's been for years.
Speaker 5: Their kids grew up. You know, they watched each other's
Speaker 5: kids grow up. And he said, you know, Johnny Smith
Speaker 5: was righting the law, but not write about the actions
Speaker 5: he took to support Trump. And that was interesting because
Speaker 5: you hear you have someone who is a long term
Speaker 5: good friend and you know they'd known each other for
Speaker 5: years and years, and also someone who's respected in the
Speaker 5: conservative circles saying, yeah, he's ride on about law. The law.
Speaker 5: You know, there are ways you could read the Constitution
Speaker 5: that you could interpret you in a broad sense, that
Speaker 5: there was uncertainty whether it was the vice president who
Speaker 5: had the authority to actually count and make determination. And
Speaker 5: he was on the stand a couple of days. You
Speaker 5: could tell in some ways he was pained, and he
Speaker 5: said it hurt to see some of what happened with
Speaker 5: some of his friends and arguing for.
Speaker 1: Trump, tell me what his first amendment argument is.
Speaker 5: His first Ammendment argue is that he is a right
Speaker 5: as a citizen to speak out. That's pretty much it
Speaker 5: comes down to. And he said he was speaking to
Speaker 5: the public and that his remarks did not create such
Speaker 5: an imminent harm, meaning they didn't propel people on the
Speaker 5: ellipse to go and raid the Capitol, so there was
Speaker 5: enough of a distance between his remarks and the actions
Speaker 5: leading up to the attack on the US Capitol.
Speaker 1: But lawyers have different kinds of responsibilities and are under
Speaker 1: different limitations right and California lawyers are enjoined from knowingly
Speaker 1: making false statements of fact or law to a tribunal,
Speaker 1: failing to correct false statements of material fact or law
Speaker 1: previously made, and offering evidence that they know to be false.
Speaker 1: So how does that impact his first Amendment argument.
Speaker 5: I didn't come across any lawyer. I spoke to a
Speaker 5: law professor who said Eastman's First Amendment right trumped his
Speaker 5: obligations as a lawyer and as an officer of the
Speaker 5: court to support the Constitution. The lawyers that I interviewed
Speaker 5: and the professors I interviewed didn't find any support for
Speaker 5: Eastman's arguments that his First Amendment right was greater than
Speaker 5: his obligation as an officer of the court to uphold
Speaker 5: what is required of all lawyers, and that's to uphold
Speaker 5: the Constitution.
Speaker 1: The judge made a preliminary finding of culpability. Tell us
Speaker 1: about that.
Speaker 5: Yes, it's a procedural finding, but it's an interesting one.
Speaker 5: But the procedural finding that she found the charges credible
Speaker 5: allowed the bar to introduce aggravating witnesses and continue with
Speaker 5: introducing and reintroducing the witnesses to testify who can say
Speaker 5: this is what happened because of his actions. That's why
Speaker 5: you had two election officials, you know, in Pennsylvania and Arizona,
Speaker 5: discuss what happened to their offices, what happened to the
Speaker 5: other election officials, you know what consequences were from the
Speaker 5: actions of Eastman and others. And I qualified because each
Speaker 5: of them went on cross examination said, you know, they
Speaker 5: couldn't point to Eastman's remark specifically, you know, to cause
Speaker 5: harm to where they had to have extra security. It
Speaker 5: was the constellation of voices, and Eastman's was one of them.
Speaker 1: Is it a fine line between a lawyer advocating for
Speaker 1: his client and making an argument as opposed to going
Speaker 1: too far in those arguments so as to make it unethical.
Speaker 5: It's not so fine a line that the majority of
Speaker 5: lawyers never get disciplined for it. And there's zealous advocacy,
Speaker 5: and there is a crossing the line to advocate for
Speaker 5: your client to act or engage in a way that
Speaker 5: violates the law. What happens next, Well, today we're going
Speaker 5: to be hearing with the judge and both sides going
Speaker 5: over some of the exhibits. There were eight hundred exhibits introduced,
Speaker 5: so they have to go through and pass through. Then
Speaker 5: you have until the twenty second. Both sides will file
Speaker 5: closing arguments post trial briefing. They waived oral briefing because
Speaker 5: they just ran out of time because it was a
Speaker 5: bit of a mess with so many objections and problems
Speaker 5: that they knew they couldn't do it. They had to
Speaker 5: get the witnesses on and they couldn't stand up there
Speaker 5: and argue. So the post trial briefings will act as
Speaker 5: their closing arguments and they can only discuss what was
Speaker 5: brought up as evidence during the trial. And then on
Speaker 5: the twenty second, the case will be considered submitted. The
Speaker 5: judge has ninety days to make her decision. Her decision
Speaker 5: can be appealed to the Hearing Department, which acts as
Speaker 5: an appellate level within the state Bar court. What evers
Speaker 5: decided within the state Bar court system goes to the
Speaker 5: California Supreme Court. The California Supreme Court is overseas attorney
Speaker 5: admission and discipline. So every attorney who gets discipline of
Speaker 5: being is barred or suspended, it has to get signed
Speaker 5: off by the California Supreme Court. So the California State
Speaker 5: Bar Court is interesting because it's the only court in
Speaker 5: the nation that deals strictly with attorney discipline. And there's
Speaker 5: two hundred and eighty thousand, you know, attorneys in California.
Speaker 5: You know, plus that's a big job.
Speaker 1: Eight hundred exhibits, I mean, what kind of exhibits. It
Speaker 1: seems like that's a lot for this case.
Speaker 5: It's a lot, and this is an usual case. But
Speaker 5: there are exhibits like that article I mentioned in The
Speaker 5: American Mind that Eastman wrote that was part of the
Speaker 5: bar charges. You know, texts that were introduced between parties, emails,
Speaker 5: some of the emails included between Eastman and Mike President
Speaker 5: Mike Pence's chief council. There is a pieces of speeches,
Speaker 5: you know, the speech on the ellipse on January sixth,
Speaker 5: that's the place that's part of the evidence. So there's
Speaker 5: all kinds of different kinds of evidence that go into
Speaker 5: both the bar's arguments and the defense arguments, or they
Speaker 5: call them the respondent's arguments.
Speaker 1: He has said that he going to take this to
Speaker 1: the Supreme Court. How often does the Supreme Court consider
Speaker 1: lawyer disciplinary issues?
Speaker 5: Very rarely. In California, that happens all the time because
Speaker 5: the Supreme Court has to sign off on a trade discipline.
Speaker 5: The US Supreme Court very rarely. It's going to be
Speaker 5: interesting to see what happens at the Supreme Court level
Speaker 5: in California, and then if the US Supreme Court even
Speaker 5: considers it, will they I don't know.
Speaker 1: So the lawyers you spoke to, do they think that
Speaker 1: the evidence is weighted against Eastman?
Speaker 5: Yes, that's a quick answer. Yes. Headshaking is the best
Speaker 5: way to describe talking to other lawyers, talking to law
Speaker 5: professors about the argument's mister Eastman's making. You have the
Speaker 5: right and you have the obligation to represent your clients.
Speaker 5: You don't have the right to basically hand them a
Speaker 5: recipe about bomb making.
Speaker 1: This case is going to be very interesting, interesting to
Speaker 1: see how the judge rules, and to see how the
Speaker 1: California Supreme Court rules, and interesting to see if the
Speaker 1: US Supreme Court takes his appeal. Thanks so much, Joyce.
Speaker 1: That's Bloomberg Law correspondent Joyce Cutler and that's it for
Speaker 1: this edition of The Bloomberg Law Show. Remember you can
Speaker 1: always get the latest legal news on our Bloomberg Law podcasts.
Speaker 1: You can find them on Apple Podcasts, Spotify, and at
Speaker 1: www dot bloomberg dot com slash podcast Slash Law, And
Speaker 1: remember to tune into The Bloomberg Law Show every weeknight
Speaker 1: at ten pm Wall Street Time. I'm June Grosso and
Speaker 1: you're listening to Bloomberg