1 00:00:03,160 --> 00:00:07,960 Speaker 1: This is Bloombird Law with June Brussel from Bloomberg Radio. 2 00:00:09,200 --> 00:00:11,600 Speaker 1: It was more than two years ago that Michael Cohen, 3 00:00:11,800 --> 00:00:15,640 Speaker 1: Donald Trump's former personal lawyer, testified to Congress about his 4 00:00:15,800 --> 00:00:21,079 Speaker 1: questionable business practices. It was my experience that Mr Trump 5 00:00:21,120 --> 00:00:25,799 Speaker 1: inflated his total assets when it served his purposes, such 6 00:00:25,800 --> 00:00:29,240 Speaker 1: as trying to be listed amongst the wealthiest people in Forbes, 7 00:00:30,040 --> 00:00:34,920 Speaker 1: and deflated his assets to reduce his real estate taxes. 8 00:00:35,479 --> 00:00:39,360 Speaker 1: And now Manhattan District Attorney Cyrus Vance Jr. Is taking 9 00:00:39,400 --> 00:00:44,000 Speaker 1: his expansive criminal investigation of these alleged Trump business practices 10 00:00:44,000 --> 00:00:47,400 Speaker 1: and others to a new level by impaneling a special 11 00:00:47,440 --> 00:00:49,960 Speaker 1: grand jury to sit three days a week for six 12 00:00:50,040 --> 00:00:54,720 Speaker 1: months to consider potential criminal charges, possibly the first criminal 13 00:00:54,800 --> 00:00:58,200 Speaker 1: charges against a former president. That's according to reports by 14 00:00:58,280 --> 00:01:02,280 Speaker 1: multiple outlets joining The Advanced. His former chief deputy, Daniel 15 00:01:02,320 --> 00:01:07,160 Speaker 1: Alonso A partnered Buckley. How is this special grand jury 16 00:01:07,360 --> 00:01:11,320 Speaker 1: different from a traditional New York grand jury? So it's 17 00:01:11,319 --> 00:01:13,840 Speaker 1: exactly the same in terms of how it operates and 18 00:01:13,880 --> 00:01:17,160 Speaker 1: what it looks like. It's twenty three people chosen from 19 00:01:17,200 --> 00:01:20,360 Speaker 1: among the pool of people going for jury duty, and 20 00:01:20,440 --> 00:01:23,800 Speaker 1: they sit and they hear evidence, and they decide on 21 00:01:23,880 --> 00:01:27,040 Speaker 1: whether or not to charge people or entities if if 22 00:01:27,160 --> 00:01:28,679 Speaker 1: charges there submitted to them by the d A. So 23 00:01:28,680 --> 00:01:30,840 Speaker 1: in that sense, it's exactly the same. The difference is 24 00:01:30,840 --> 00:01:34,680 Speaker 1: that regular grand jury sit for what are called terms 25 00:01:34,680 --> 00:01:36,640 Speaker 1: of court. They sit for four weeks at a time, 26 00:01:37,000 --> 00:01:39,000 Speaker 1: and those coins side with with the so called terms 27 00:01:39,000 --> 00:01:41,920 Speaker 1: of Supreme Court in New York City, and they will 28 00:01:41,959 --> 00:01:44,920 Speaker 1: hear whatever cases come along during those four weeks. And 29 00:01:44,959 --> 00:01:47,440 Speaker 1: you know, most cases are relatively simple. If it's a 30 00:01:47,480 --> 00:01:51,400 Speaker 1: small drug by or a burglary or robbery or something 31 00:01:51,480 --> 00:01:53,760 Speaker 1: like that, you know that only takes a few witnesses, 32 00:01:53,840 --> 00:01:56,720 Speaker 1: and then grand jury retires to deliberate and usually makes 33 00:01:56,720 --> 00:01:59,400 Speaker 1: relatively twenty minutes or half an how or you know, 34 00:01:59,440 --> 00:02:01,800 Speaker 1: a complicated point to take three hours. So that's a 35 00:02:01,880 --> 00:02:05,400 Speaker 1: regular adventure when you've got a case that is particularly 36 00:02:05,400 --> 00:02:08,840 Speaker 1: complex and is going to require the presentation of a 37 00:02:08,840 --> 00:02:11,840 Speaker 1: lot of evidence, because New York grand jury is generally speaking, 38 00:02:11,880 --> 00:02:14,040 Speaker 1: can't receive hearsay of it, so they have to hear 39 00:02:14,080 --> 00:02:16,840 Speaker 1: from the actual witnesses. Very different from like when I 40 00:02:16,840 --> 00:02:19,960 Speaker 1: was a federal prosecutor, it was actually pretty streamelined. If 41 00:02:20,000 --> 00:02:23,200 Speaker 1: I had a complex to present. You literally would spend 42 00:02:23,280 --> 00:02:25,440 Speaker 1: you know, two three hours in the grand jury with 43 00:02:25,480 --> 00:02:29,600 Speaker 1: the federal agent who will recite the investigation she's done 44 00:02:29,639 --> 00:02:32,720 Speaker 1: over the last two years, and then the grand jury 45 00:02:32,800 --> 00:02:35,079 Speaker 1: is presented those charges. That's not the way it works 46 00:02:35,120 --> 00:02:37,960 Speaker 1: at Stake Act, generally speaking, present the actual witness So 47 00:02:38,120 --> 00:02:40,480 Speaker 1: they need the extra time beyond the four weeks to 48 00:02:40,560 --> 00:02:43,200 Speaker 1: present the entirety of the case. And then it also 49 00:02:43,240 --> 00:02:45,760 Speaker 1: gives them the opportunity to use the grand jury to 50 00:02:45,800 --> 00:02:49,560 Speaker 1: its full investigative potential, meaning that they can call hostile 51 00:02:49,600 --> 00:02:52,680 Speaker 1: witnesses by subpoena and compel them even if they don't 52 00:02:52,680 --> 00:02:56,840 Speaker 1: want to testify. So that's a cumbersome process because sometimes 53 00:02:56,840 --> 00:02:59,400 Speaker 1: the witnesses may first of all us Germans, but they 54 00:02:59,440 --> 00:03:02,200 Speaker 1: also may interposed some objections. There's not a whole lot 55 00:03:02,240 --> 00:03:05,360 Speaker 1: of brands for objections. They may interpose some objections and 56 00:03:05,360 --> 00:03:07,399 Speaker 1: then you know they're reluctant, so it takes a while 57 00:03:07,440 --> 00:03:09,680 Speaker 1: to get the answers out of them. So you do 58 00:03:09,760 --> 00:03:12,080 Speaker 1: need a longer term grand jury for that. So what 59 00:03:12,160 --> 00:03:14,840 Speaker 1: happens is you're kind of an additional four week grand 60 00:03:14,880 --> 00:03:16,799 Speaker 1: jury in addition to the I don't know if it's 61 00:03:16,800 --> 00:03:19,280 Speaker 1: ten or twelve that are usually sitting, and then that 62 00:03:19,400 --> 00:03:22,360 Speaker 1: additional grand jury will then get extended. Its term will 63 00:03:22,400 --> 00:03:24,320 Speaker 1: get extended by both of the grand jury and by 64 00:03:24,400 --> 00:03:26,880 Speaker 1: court order. In this case, importance to the reporting to 65 00:03:27,080 --> 00:03:31,560 Speaker 1: be extended for six months. Vance has been investigating Trump, 66 00:03:31,600 --> 00:03:35,400 Speaker 1: the Trump organization for something like two years. What does 67 00:03:35,440 --> 00:03:37,840 Speaker 1: it tell you that at this point they're convening this 68 00:03:37,960 --> 00:03:41,040 Speaker 1: special grand jury. It tells me that they've gathered enough 69 00:03:41,040 --> 00:03:44,320 Speaker 1: evidence using grand jury process. Right, They've obviously been issuing 70 00:03:44,320 --> 00:03:46,040 Speaker 1: subpoenas in the name of the grand jury, but they 71 00:03:46,080 --> 00:03:48,880 Speaker 1: probably haven't been having a lot of evidence before grand juries. 72 00:03:48,960 --> 00:03:51,840 Speaker 1: They're now ready to have one grand jury. Here the 73 00:03:51,880 --> 00:03:54,680 Speaker 1: evidence they've gathered that they believe will support charges. So 74 00:03:54,680 --> 00:03:56,600 Speaker 1: it tells me that they believe there are charges to 75 00:03:56,680 --> 00:04:00,080 Speaker 1: be supported against at least some people. And you know, all, 76 00:04:00,120 --> 00:04:02,880 Speaker 1: it's not uncommon for at the beginning of an extended 77 00:04:02,880 --> 00:04:05,920 Speaker 1: grand jury not to know exactly what charges you may 78 00:04:06,000 --> 00:04:07,360 Speaker 1: or may not be presenting. You want to hear the 79 00:04:07,400 --> 00:04:09,440 Speaker 1: evidence and how it comes out, just like anyone else. 80 00:04:09,440 --> 00:04:11,760 Speaker 1: But it does tell me that they are highly likely 81 00:04:11,880 --> 00:04:14,200 Speaker 1: to have decided that they're going to present charges. Again, 82 00:04:14,360 --> 00:04:16,680 Speaker 1: someone Obviously, we have to stress that we're all speculating 83 00:04:16,880 --> 00:04:19,800 Speaker 1: that they are going to very likely present charts. So now, 84 00:04:20,000 --> 00:04:23,320 Speaker 1: if you're Donald Trump's attorney, what are you telling your 85 00:04:23,360 --> 00:04:27,039 Speaker 1: client right now? Well, the granjeury process, i should say, 86 00:04:27,120 --> 00:04:29,920 Speaker 1: is not transparent. So grand juries are secret by law 87 00:04:30,080 --> 00:04:33,040 Speaker 1: for very good reasons. But the target of the grand jury, 88 00:04:33,080 --> 00:04:35,039 Speaker 1: assuming Donald Trump is a target of the grand jury, 89 00:04:35,200 --> 00:04:38,640 Speaker 1: doesn't get any particular information, doesn't get any information at 90 00:04:38,680 --> 00:04:41,760 Speaker 1: all from the prosecutor. And you know, it's left to 91 00:04:41,800 --> 00:04:44,040 Speaker 1: a little bit speculate as to who might be testifying. 92 00:04:44,360 --> 00:04:48,240 Speaker 1: Now witnesses, Unlike the prosecutor who scorned the secrecy, witnesses 93 00:04:48,480 --> 00:04:51,560 Speaker 1: are allowed to tell anyone what they have testified to. 94 00:04:51,720 --> 00:04:54,680 Speaker 1: So I would anticipate if there are hostile witnesses, people 95 00:04:54,800 --> 00:04:57,240 Speaker 1: being subcoena, like I mentioned a few minutes ago, they 96 00:04:57,279 --> 00:05:01,920 Speaker 1: will probably report back to Trump or his lawyers through 97 00:05:01,920 --> 00:05:05,279 Speaker 1: their own lawyers. So Trump's lawyers will be trying to 98 00:05:05,360 --> 00:05:09,240 Speaker 1: monitor what's going on, but they'll have only partial success 99 00:05:09,279 --> 00:05:11,800 Speaker 1: because of the secrecy of adventjury. So what you're telling 100 00:05:11,839 --> 00:05:14,120 Speaker 1: Trump is there's not a lot that we can do 101 00:05:14,240 --> 00:05:16,600 Speaker 1: in terms of the investigation that you don't have the 102 00:05:16,640 --> 00:05:18,760 Speaker 1: same protections you had at the Supreme Court said you 103 00:05:18,800 --> 00:05:20,719 Speaker 1: had when you were a president. So we should be 104 00:05:20,720 --> 00:05:22,840 Speaker 1: getting our ducks in the road to try to argue 105 00:05:22,960 --> 00:05:25,080 Speaker 1: that you should not be indicted. When the time comes, 106 00:05:25,360 --> 00:05:28,520 Speaker 1: and if it looks like they're going to present charges 107 00:05:28,560 --> 00:05:30,440 Speaker 1: against you, you might want to consider whether you want 108 00:05:30,440 --> 00:05:33,240 Speaker 1: to offer to testify before the state maran jury. That's 109 00:05:33,279 --> 00:05:36,000 Speaker 1: something that defendants have an absolute right to do, and 110 00:05:36,040 --> 00:05:38,640 Speaker 1: targets will usually be accommodated for that if they want 111 00:05:38,640 --> 00:05:42,200 Speaker 1: to test. So much has been said about how important 112 00:05:42,240 --> 00:05:45,799 Speaker 1: it would be to have Alan Weisselberg, the longtime CFO 113 00:05:45,880 --> 00:05:49,480 Speaker 1: of the Trump organization, who knows where every penny was spent, 114 00:05:50,040 --> 00:05:53,479 Speaker 1: to have him flip and testify against Trump. Does he 115 00:05:53,560 --> 00:05:56,719 Speaker 1: strike you as a necessary witness? You know, that's I 116 00:05:56,760 --> 00:05:59,039 Speaker 1: think a bit of speculation too far to say whether 117 00:05:59,080 --> 00:06:01,080 Speaker 1: he's a necessary wood because we don't know what he's 118 00:06:01,080 --> 00:06:03,120 Speaker 1: a necessary witness to write. There's so much we don't know. 119 00:06:03,200 --> 00:06:05,760 Speaker 1: We don't know exactly what kinds of charges they're looking 120 00:06:05,800 --> 00:06:08,200 Speaker 1: to present. We of course know that accounting fraud is 121 00:06:08,279 --> 00:06:11,200 Speaker 1: a part of it, whether it's related to banks or 122 00:06:11,240 --> 00:06:14,520 Speaker 1: insurance companies or the text authorities, but we don't know 123 00:06:14,839 --> 00:06:17,719 Speaker 1: whether they have enough evidence against Alan Weisenberg. We don't 124 00:06:17,720 --> 00:06:21,120 Speaker 1: know whether Alan Weislberg had conversations with Donald Trump about 125 00:06:21,160 --> 00:06:23,360 Speaker 1: whatever he may or may not have done. One presumes 126 00:06:23,400 --> 00:06:26,599 Speaker 1: that he did have conversations and from famously does not 127 00:06:26,760 --> 00:06:29,120 Speaker 1: use email. So that's the way that a lot of 128 00:06:29,160 --> 00:06:32,000 Speaker 1: times knowledge and intent can be established, which is that 129 00:06:32,040 --> 00:06:35,440 Speaker 1: people send contemporary emails. They received contemporar anyse emails, and 130 00:06:35,520 --> 00:06:37,680 Speaker 1: that says a lot about what they knew and when 131 00:06:37,680 --> 00:06:40,479 Speaker 1: they knew it, which is so important. So assuming that 132 00:06:40,560 --> 00:06:42,640 Speaker 1: there was in fact the criminal fraud, and that Allen 133 00:06:42,680 --> 00:06:45,760 Speaker 1: Weislberg was involved, and that Alan Weislberg and Trump had 134 00:06:45,800 --> 00:06:48,800 Speaker 1: dissessions about it, then I would call him an indispensable 135 00:06:48,800 --> 00:06:51,120 Speaker 1: witness against Trump. Doesn't mean there might not be others. 136 00:06:51,279 --> 00:06:54,560 Speaker 1: We don't know. Obviously, Michael Cohen is often a testify, 137 00:06:54,839 --> 00:06:58,120 Speaker 1: and doubt that Weislberg's daughter in law, who is cooperating, 138 00:06:58,200 --> 00:07:00,760 Speaker 1: you know, has much information about trum but we just 139 00:07:00,800 --> 00:07:03,440 Speaker 1: don't know. So the second you hear about people talking 140 00:07:03,440 --> 00:07:06,400 Speaker 1: about this grand jury, the question is will Alan Weisleberg flip? 141 00:07:06,839 --> 00:07:11,040 Speaker 1: Hasn't he testified against Trump in the past. I don't 142 00:07:11,040 --> 00:07:14,480 Speaker 1: think I would call it testifying against Trump. So Trump 143 00:07:14,520 --> 00:07:18,200 Speaker 1: has never been charged criminally, and as far as I know, 144 00:07:18,760 --> 00:07:21,640 Speaker 1: in any of the civil cases that where he's been sued, 145 00:07:21,960 --> 00:07:26,080 Speaker 1: Alan Weislberg hasn't testified for the other side. So what 146 00:07:26,080 --> 00:07:29,280 Speaker 1: what's been reported is that Alan Weislberg has both testified 147 00:07:29,360 --> 00:07:32,880 Speaker 1: in investigated depositions for the Attorney General in civil matters, 148 00:07:32,960 --> 00:07:38,280 Speaker 1: and that he was either interviewed or testified before a 149 00:07:38,320 --> 00:07:40,560 Speaker 1: federal grand jury, interviewed by the FED, or tested for 150 00:07:40,640 --> 00:07:43,760 Speaker 1: a federal ran jury under what's called use immunity. And 151 00:07:44,160 --> 00:07:46,720 Speaker 1: that tells me that he would not say anything unless 152 00:07:46,720 --> 00:07:50,120 Speaker 1: he was compelled. But it's unclear in the extreme whether 153 00:07:50,160 --> 00:07:53,480 Speaker 1: what he said was incriminating against Trump. Possible he was 154 00:07:53,920 --> 00:07:56,600 Speaker 1: just being used as a tie up witness against Michael Cohen. 155 00:07:56,880 --> 00:07:59,840 Speaker 1: I doubt that. I think that they probably did certainly 156 00:08:00,000 --> 00:08:02,280 Speaker 1: asked him about Trump. We just don't know what they 157 00:08:02,280 --> 00:08:05,000 Speaker 1: asked him, And certainly the d A doesn't want to know, 158 00:08:05,120 --> 00:08:08,440 Speaker 1: because the federal testimony was taken under a grant of 159 00:08:08,480 --> 00:08:10,880 Speaker 1: community and so the DA doesn't want to taint his 160 00:08:10,960 --> 00:08:15,400 Speaker 1: investigation with knowledge of that stape. The reporting is that 161 00:08:15,480 --> 00:08:19,760 Speaker 1: the Manhattan d A has been investigating Wisselberg's finances and 162 00:08:19,840 --> 00:08:22,920 Speaker 1: his son's finances. Does that indicate that they're trying to 163 00:08:22,920 --> 00:08:25,880 Speaker 1: put pressure on him to testify, or that he might 164 00:08:25,920 --> 00:08:28,920 Speaker 1: be a target as well. I think less definitely a 165 00:08:29,000 --> 00:08:32,360 Speaker 1: target based on reporting the CFO. He's always at the 166 00:08:32,400 --> 00:08:34,680 Speaker 1: heart of accounting fraud cases. This is at the end 167 00:08:34,720 --> 00:08:37,120 Speaker 1: of the day, and accounting fraud right with the counting frauds, 168 00:08:37,120 --> 00:08:39,800 Speaker 1: you just always wonder who were they falsifying the records for. 169 00:08:40,080 --> 00:08:43,880 Speaker 1: Sometimes it's for on holders, sometimes it's for lenders, sometimes 170 00:08:43,880 --> 00:08:46,679 Speaker 1: it's for shareholders. I mean the famous examples are World 171 00:08:46,760 --> 00:08:49,520 Speaker 1: Calm and Computer Associates and en Ron, and they're the 172 00:08:49,559 --> 00:08:53,480 Speaker 1: CFOs were always either targets or incredibly important cooperating witnesses. 173 00:08:53,880 --> 00:08:56,040 Speaker 1: So this is just an accounting fraud as well. So 174 00:08:56,080 --> 00:08:58,760 Speaker 1: that Alan Weislberg is absolutely key to your question on 175 00:08:58,840 --> 00:09:02,160 Speaker 1: pressuring him. I think that there's some pressure that comes 176 00:09:02,200 --> 00:09:06,480 Speaker 1: from the possibility of being charged criminally. Obviously he doesn't 177 00:09:06,480 --> 00:09:09,760 Speaker 1: want that, but I think there's almost more pressure sometimes 178 00:09:09,840 --> 00:09:13,160 Speaker 1: on white collar target when family or both friends are 179 00:09:13,600 --> 00:09:15,360 Speaker 1: I think that you know the fact that his son 180 00:09:15,600 --> 00:09:18,280 Speaker 1: appears to be at least the subject of the d 181 00:09:18,400 --> 00:09:21,800 Speaker 1: a's investigation relating to tax vill Bridge benefits that perhaps 182 00:09:21,840 --> 00:09:25,840 Speaker 1: he didn't declare on a tax returns. There you can 183 00:09:25,880 --> 00:09:31,320 Speaker 1: imagine Wislberg negotiating to spare his son, and he would 184 00:09:31,320 --> 00:09:34,800 Speaker 1: then cooperate. This is not uncommon happened for the most famous. 185 00:09:34,840 --> 00:09:37,720 Speaker 1: One of the earl earliest examples was when Michael Milton 186 00:09:38,080 --> 00:09:41,360 Speaker 1: agreed to pree guilty thirty plus years ago in the 187 00:09:41,360 --> 00:09:44,920 Speaker 1: Southern District of New York. His agreement specifically spared his 188 00:09:44,960 --> 00:09:48,080 Speaker 1: brother Lowell Milton from any prosecutions. And that's something that 189 00:09:48,200 --> 00:09:50,000 Speaker 1: does happen from time of time. I've done it, and 190 00:09:50,040 --> 00:09:54,239 Speaker 1: it's perfectly legitimate as a wrapping up every possible negotiating 191 00:09:54,320 --> 00:09:57,760 Speaker 1: ship into a contract of the government. And with so, 192 00:09:57,840 --> 00:10:00,200 Speaker 1: the burden of proof at the grand jury is is 193 00:10:00,760 --> 00:10:05,720 Speaker 1: probable cause. But will prosecutors bring a case unless they're 194 00:10:05,920 --> 00:10:09,199 Speaker 1: convinced that they can prove it beyond a reasonable doubt. 195 00:10:10,040 --> 00:10:12,600 Speaker 1: It's a great question. You're absolutely right that the standard 196 00:10:12,800 --> 00:10:15,520 Speaker 1: is lesser in the grand jury. You know, it's called 197 00:10:15,559 --> 00:10:18,679 Speaker 1: probable cause in New York. The federal is called reasonable cause. 198 00:10:18,960 --> 00:10:23,520 Speaker 1: But the reality is that in felony cases, the tradition 199 00:10:23,559 --> 00:10:25,880 Speaker 1: in the Manhattan DA's office and in the Federal Prosecues 200 00:10:25,920 --> 00:10:28,600 Speaker 1: obsice in New York has been for a long time 201 00:10:29,120 --> 00:10:32,080 Speaker 1: not to take a case to trial unless you believe 202 00:10:32,520 --> 00:10:35,360 Speaker 1: in the dependants guilty a reasonable doubt and you believe 203 00:10:35,400 --> 00:10:37,959 Speaker 1: you improve it. So we're not at the point where 204 00:10:37,960 --> 00:10:40,320 Speaker 1: they're decided to take it to trial. But obviously a 205 00:10:40,320 --> 00:10:43,960 Speaker 1: case of this complexity, you want to strongly believe that 206 00:10:44,080 --> 00:10:45,840 Speaker 1: you have a winnable case of trial and that you 207 00:10:45,880 --> 00:10:48,160 Speaker 1: believe in the guilt of the defendants at the time 208 00:10:48,160 --> 00:10:50,840 Speaker 1: that you indict. That was always true for complex cases. 209 00:10:50,880 --> 00:10:55,559 Speaker 1: It's particularly true since January twenty when the law changed 210 00:10:55,600 --> 00:10:59,920 Speaker 1: in New York to allow for expansive discovery for the defense. 211 00:11:00,160 --> 00:11:04,520 Speaker 1: So the minute that somebody is arrested and appears for arrayment, 212 00:11:04,640 --> 00:11:07,000 Speaker 1: a clock start picking, whereby the DA needs to really 213 00:11:07,000 --> 00:11:10,440 Speaker 1: turn everything over to the defense. And here the defense 214 00:11:10,559 --> 00:11:12,240 Speaker 1: first already has some of some of the stuff that 215 00:11:12,280 --> 00:11:15,440 Speaker 1: they don't have everything. So that will mean that the 216 00:11:15,520 --> 00:11:17,559 Speaker 1: d A really is going to want to have his 217 00:11:17,679 --> 00:11:20,680 Speaker 1: ducks in a row when this indictment is is filed 218 00:11:20,760 --> 00:11:24,440 Speaker 1: filed and Unfield, speaking about the clock ticking, this is 219 00:11:24,440 --> 00:11:28,200 Speaker 1: a six month grand jury that coincides with the end 220 00:11:28,240 --> 00:11:32,480 Speaker 1: of Civan's tenure as Manhattan District Attorney. Because he's not 221 00:11:32,559 --> 00:11:35,120 Speaker 1: running again, does it seem as if he wants to 222 00:11:35,200 --> 00:11:39,320 Speaker 1: make the charging decision before he leaves office? Clearly sees 223 00:11:39,440 --> 00:11:42,480 Speaker 1: that way. Yes, this is something that he's been focused 224 00:11:42,520 --> 00:11:45,120 Speaker 1: on personally, as I understand it. It doesn't mean he's 225 00:11:45,160 --> 00:11:47,080 Speaker 1: running the whole thing, but he's been. He's been absolutely 226 00:11:47,080 --> 00:11:49,480 Speaker 1: working on this matter personally. That's not unusual for him. 227 00:11:49,480 --> 00:11:51,640 Speaker 1: By the way, when I was working under him as 228 00:11:51,640 --> 00:11:54,079 Speaker 1: the Tief assistant DA in his first term, he handled 229 00:11:54,120 --> 00:11:57,599 Speaker 1: a handful of cases personally. He's always consider himself the 230 00:11:57,679 --> 00:12:00,880 Speaker 1: lawyer first, politicians second. He's a great trial lawyer. He's 231 00:12:00,960 --> 00:12:02,600 Speaker 1: argued a couple of appeals over the years in New 232 00:12:02,679 --> 00:12:05,080 Speaker 1: York's high spot Court of Appeals. So is being hands on? 233 00:12:05,360 --> 00:12:09,000 Speaker 1: Isn't shocking for a case of this complexity and historical importance? Right, 234 00:12:09,040 --> 00:12:10,760 Speaker 1: It's not just a Trump is famous in the case. 235 00:12:11,640 --> 00:12:14,160 Speaker 1: That is a former president. Right, That's something we've never 236 00:12:14,200 --> 00:12:17,360 Speaker 1: done as a country. So you wrap all that into 237 00:12:17,400 --> 00:12:20,400 Speaker 1: the time frame you just mentioned, And yes, I think 238 00:12:20,520 --> 00:12:22,800 Speaker 1: is every ducation that DA is going to want to 239 00:12:22,800 --> 00:12:25,560 Speaker 1: make the decision as to what charges to present and 240 00:12:25,600 --> 00:12:29,720 Speaker 1: against them before he leaves. Recently, the New York Attorney 241 00:12:29,760 --> 00:12:33,760 Speaker 1: General joined forces with the d A. How does that 242 00:12:33,840 --> 00:12:37,320 Speaker 1: play in here? Is that another sign sort of? I 243 00:12:37,320 --> 00:12:39,240 Speaker 1: think so. I think it's a sign, a sign that 244 00:12:39,320 --> 00:12:42,320 Speaker 1: the case is substantial. There have been a few signs 245 00:12:42,400 --> 00:12:45,160 Speaker 1: of that, the effort that the DAS has made in 246 00:12:45,280 --> 00:12:48,480 Speaker 1: terms of gathering evidence going on, with the fact that 247 00:12:48,760 --> 00:12:52,360 Speaker 1: he brought in a special assistant from private practice whose 248 00:12:52,400 --> 00:12:55,800 Speaker 1: former federal prosecutor at a long time, like Collar Defense Layer, 249 00:12:55,800 --> 00:12:58,240 Speaker 1: probably wouldn't have joined had he not thought that there 250 00:12:58,360 --> 00:13:00,920 Speaker 1: was a kind of an ongoing future to the case. 251 00:13:01,640 --> 00:13:04,120 Speaker 1: And the Attorney General brings not just you know, it's 252 00:13:04,120 --> 00:13:05,800 Speaker 1: not just a t lead for us to read. But 253 00:13:06,000 --> 00:13:08,760 Speaker 1: the Attorney General staff is very familiar with the Trump 254 00:13:08,840 --> 00:13:12,079 Speaker 1: organization for a lot of reasons, through through investigations that 255 00:13:12,120 --> 00:13:15,520 Speaker 1: they've done over the years of front Foundation, Trump University, 256 00:13:15,880 --> 00:13:18,360 Speaker 1: but also they're they're the regulator for co ops and 257 00:13:18,400 --> 00:13:21,800 Speaker 1: condos and so Trump has had to the Trump organization 258 00:13:21,840 --> 00:13:24,720 Speaker 1: has had to file with them for for a long time. 259 00:13:24,760 --> 00:13:28,559 Speaker 1: So I think that the expertise that they bring is invaluable. 260 00:13:29,040 --> 00:13:33,439 Speaker 1: The two assistant attorneys generals who's been crushed designated as 261 00:13:33,440 --> 00:13:37,280 Speaker 1: I understand it, we're former Manhattan assistant pas. So that 262 00:13:37,480 --> 00:13:41,840 Speaker 1: is also a positive because we know the DA knows 263 00:13:41,920 --> 00:13:45,240 Speaker 1: that he can be comfortable with them as confidence. Uh 264 00:13:45,520 --> 00:13:49,560 Speaker 1: you know, diligent lawyers and they understand the system and 265 00:13:49,880 --> 00:13:52,160 Speaker 1: working together with the d A staffs. So this is 266 00:13:52,200 --> 00:13:54,439 Speaker 1: not going to be anyone working at cross purposes. This 267 00:13:54,559 --> 00:13:57,840 Speaker 1: is going to be the Attorney General's expertise being brought 268 00:13:57,920 --> 00:14:02,360 Speaker 1: into the as investigation. Finally, I have a question about 269 00:14:02,400 --> 00:14:06,040 Speaker 1: Michael Cohen. How good a witness easy at the grand 270 00:14:06,120 --> 00:14:11,040 Speaker 1: jury when he has been convicted of a felony. Well, 271 00:14:11,200 --> 00:14:13,760 Speaker 1: lots of witnesses at grand juries and a trial have 272 00:14:13,840 --> 00:14:18,320 Speaker 1: been convicted of felonies. The world of complex crime would 273 00:14:18,320 --> 00:14:22,280 Speaker 1: be a lot less interesting if witness witnesses who you 274 00:14:22,280 --> 00:14:25,240 Speaker 1: know didn't slip and cooperate. Right, We're talking about Alan 275 00:14:25,280 --> 00:14:27,960 Speaker 1: Weislberg a couple of minutes ago. If he quote clips 276 00:14:28,200 --> 00:14:31,040 Speaker 1: to be a will definitely insist on a guilty flee 277 00:14:31,360 --> 00:14:36,080 Speaker 1: by him, uh to to a felony or felonies. So 278 00:14:35,800 --> 00:14:38,160 Speaker 1: h So that's not the issue. The issue with Michael 279 00:14:38,160 --> 00:14:42,160 Speaker 1: Cohen is that the Southern District didn't sign him up 280 00:14:42,200 --> 00:14:45,760 Speaker 1: as a cooperator. What back when they were when they 281 00:14:45,760 --> 00:14:49,200 Speaker 1: had got his flee to the tax and story of 282 00:14:49,320 --> 00:14:52,840 Speaker 1: Daniels Prime. And the reason they didn't do that is 283 00:14:52,880 --> 00:14:55,600 Speaker 1: because it's become kind of clear to me from listening 284 00:14:55,640 --> 00:14:57,920 Speaker 1: to him on his podcast. He doesn't seem to believe 285 00:14:57,920 --> 00:15:00,880 Speaker 1: in his guilt of the other Prime at the Southern 286 00:15:00,960 --> 00:15:03,920 Speaker 1: District charts for examples on the tax fraud that he 287 00:15:03,960 --> 00:15:05,600 Speaker 1: played guilty to him, and I don't remember what the 288 00:15:05,680 --> 00:15:09,280 Speaker 1: exact charge was, but he blames his accountants now publicly 289 00:15:09,280 --> 00:15:12,000 Speaker 1: and he's suing his account so he's saying he relied 290 00:15:12,000 --> 00:15:14,400 Speaker 1: on his accountants. So the Southern District, which believed he 291 00:15:14,440 --> 00:15:17,600 Speaker 1: committed willful tax evasion, you know, would not sign up 292 00:15:17,600 --> 00:15:21,080 Speaker 1: a cooperator unless there willing truthfully admit everything they've ever done, 293 00:15:21,160 --> 00:15:23,480 Speaker 1: not just the crime that they're cooperating about. You know. 294 00:15:23,520 --> 00:15:26,760 Speaker 1: With Alan Weisenberg, let's say had been evading taxes for 295 00:15:26,800 --> 00:15:29,040 Speaker 1: twenty years, he would have to admit all that. If 296 00:15:29,040 --> 00:15:30,720 Speaker 1: he had been doing something completely for a field, like 297 00:15:30,800 --> 00:15:33,320 Speaker 1: dealing drugs or something, he would have to admit that. 298 00:15:33,800 --> 00:15:37,360 Speaker 1: So that's how cooperation works. And since Cohen wasn't willing 299 00:15:37,400 --> 00:15:40,080 Speaker 1: to do that. The Southern District wasn't willing to sign 300 00:15:40,160 --> 00:15:42,680 Speaker 1: him up. Now that doesn't mean he's not credible. I mean, 301 00:15:42,920 --> 00:15:45,320 Speaker 1: there's the whole point of juries is the way people's credibility, 302 00:15:45,320 --> 00:15:47,840 Speaker 1: and people can be credible about some things and not 303 00:15:47,840 --> 00:15:50,080 Speaker 1: tell the truth about others. Prosecutors don't like to do that, 304 00:15:50,480 --> 00:15:53,320 Speaker 1: so I think they're probably wary of calling him, but 305 00:15:53,560 --> 00:15:55,680 Speaker 1: it doesn't mean they're not going to. And I will 306 00:15:55,720 --> 00:15:57,840 Speaker 1: say that the fact that he lied to Congress to 307 00:15:57,960 --> 00:16:01,040 Speaker 1: me is practically a re of it in terms of 308 00:16:01,480 --> 00:16:04,840 Speaker 1: assessing his credibility, not because juries aren't allowed to weigh 309 00:16:05,040 --> 00:16:07,240 Speaker 1: people's previous lives. Of course they are, you know, an 310 00:16:07,320 --> 00:16:09,840 Speaker 1: any life like live under oath. I don't remember exactly, 311 00:16:09,880 --> 00:16:11,680 Speaker 1: but either way, it was a federal crime and he's 312 00:16:11,680 --> 00:16:13,760 Speaker 1: like guilty to it. But he did it to protect 313 00:16:13,800 --> 00:16:16,120 Speaker 1: Donald Trump, right, he didn't do it for any other reasons. 314 00:16:16,120 --> 00:16:18,640 Speaker 1: So it's not going to score a lot of points 315 00:16:18,720 --> 00:16:21,280 Speaker 1: for the defense lawyers to say, oh, you you you're 316 00:16:21,280 --> 00:16:23,000 Speaker 1: a liar, you convicted liar, you're a liar. I mean, 317 00:16:23,000 --> 00:16:25,280 Speaker 1: the Congress did that when Colin testified a couple of 318 00:16:25,320 --> 00:16:26,960 Speaker 1: years ago, and I thought it felt flat because the 319 00:16:27,000 --> 00:16:29,800 Speaker 1: reason he lied was to protect Donald Trump. So I think, 320 00:16:29,840 --> 00:16:32,080 Speaker 1: you know, Cohen has his prose and his con but 321 00:16:32,240 --> 00:16:34,360 Speaker 1: let's just say I put on and my colleagues in 322 00:16:34,400 --> 00:16:37,120 Speaker 1: the U. S. Attorney's Office, particularly in mafia cases, have 323 00:16:37,200 --> 00:16:39,920 Speaker 1: put on, you know, way worse people than Michael Cohen. 324 00:16:40,280 --> 00:16:45,920 Speaker 1: Thanks Dan. That's Daniel Alonso of Buckley LLLP. The question 325 00:16:45,960 --> 00:16:49,040 Speaker 1: of qualified immunity for police officers is that the heart 326 00:16:49,040 --> 00:16:52,240 Speaker 1: of the Congressional impass over, the George Floyd, Johnice and 327 00:16:52,360 --> 00:16:57,160 Speaker 1: Policing Act. Here's Democratic Congresswoman Karen Bass. You're looking at 328 00:16:57,240 --> 00:17:00,920 Speaker 1: how to hold officers accountable. That is the number one issue. 329 00:17:01,320 --> 00:17:04,639 Speaker 1: So one is the public being able to hold an 330 00:17:04,640 --> 00:17:08,400 Speaker 1: individual officer as well as the department accountable, as well 331 00:17:08,440 --> 00:17:12,680 Speaker 1: as being able to prostitute officers that commit crimes. As 332 00:17:12,680 --> 00:17:15,720 Speaker 1: the nation wrestles with cases involving the use of force 333 00:17:15,800 --> 00:17:18,919 Speaker 1: by police, the Supreme Court declined to take up a 334 00:17:19,000 --> 00:17:22,000 Speaker 1: case this week that would have put the justices into 335 00:17:22,040 --> 00:17:25,320 Speaker 1: the national debate over qualified immunity. Joining me as a 336 00:17:25,400 --> 00:17:28,199 Speaker 1: leading expert in the field, Joanna Schwartz, a professor at 337 00:17:28,280 --> 00:17:31,040 Speaker 1: u c l A Law School, start by explaining just 338 00:17:31,119 --> 00:17:36,359 Speaker 1: what qualified immunity is qualified immunity is a defense that 339 00:17:36,560 --> 00:17:40,719 Speaker 1: police officers and other government officials can raise in civil 340 00:17:40,800 --> 00:17:43,800 Speaker 1: rights claims against them. So it does not apply to 341 00:17:43,840 --> 00:17:48,639 Speaker 1: criminal prosecutions, but claims for money damages. And it's a 342 00:17:48,720 --> 00:17:53,159 Speaker 1: defense that the Supreme Court created in nineteen sixty seven. 343 00:17:53,560 --> 00:17:57,600 Speaker 1: At the time, they described it as a defense for 344 00:17:57,960 --> 00:18:01,560 Speaker 1: officers even if they had violated the Constitution, if they 345 00:18:01,600 --> 00:18:05,399 Speaker 1: acted in good faith. But over the years, the Supreme 346 00:18:05,440 --> 00:18:09,480 Speaker 1: Court has repeatedly changed the doctrine, made it more difficult 347 00:18:09,880 --> 00:18:14,520 Speaker 1: to overcome the defense, and today it has nothing to 348 00:18:14,520 --> 00:18:18,840 Speaker 1: do with officers good faith. The standard instead is whether 349 00:18:18,960 --> 00:18:23,639 Speaker 1: officers violated clearly established law, And according to the Supreme Court, 350 00:18:24,040 --> 00:18:27,159 Speaker 1: the law is only clearly established if there happens to 351 00:18:27,200 --> 00:18:32,400 Speaker 1: be a prior court decision holding unconstitutional. Virtually identical facts 352 00:18:32,560 --> 00:18:38,040 Speaker 1: tell us a little bit about the case involving Euclid, Ohio. Sure, so, 353 00:18:38,600 --> 00:18:42,680 Speaker 1: there is a case called Stewart versus City of Euclid, 354 00:18:42,840 --> 00:18:49,320 Speaker 1: where the Supreme Court just recently declined to hear the case. Um. 355 00:18:49,359 --> 00:18:53,679 Speaker 1: It's a case in which Mr Stewart had fallen asleep 356 00:18:53,680 --> 00:18:57,320 Speaker 1: in his car outside his friend's house. Um, he was 357 00:18:57,320 --> 00:18:59,480 Speaker 1: supposed to go over to his friend's house, and when 358 00:18:59,480 --> 00:19:01,840 Speaker 1: he arrived of the friend wasn't there, and so he 359 00:19:02,359 --> 00:19:05,199 Speaker 1: ended up sleeping in his car and the neighbor called 360 00:19:05,600 --> 00:19:08,320 Speaker 1: um the police in the morning to say that there 361 00:19:08,359 --> 00:19:12,919 Speaker 1: was vicious car in the neighborhood. So police came to 362 00:19:13,000 --> 00:19:17,600 Speaker 1: the car and decided that they needed to get him 363 00:19:17,600 --> 00:19:20,680 Speaker 1: out of the car. They tapped on the window. He 364 00:19:21,040 --> 00:19:22,919 Speaker 1: did not know that that they wanted him to do 365 00:19:23,000 --> 00:19:27,439 Speaker 1: anything other than start driving, So he began driving and 366 00:19:27,520 --> 00:19:31,400 Speaker 1: one of the police officers, Officer Roads, got into the car, 367 00:19:31,640 --> 00:19:34,439 Speaker 1: opened the door and got into the car. Mr Stewart 368 00:19:34,440 --> 00:19:37,600 Speaker 1: didn't know what Officer Rhodes was doing in the car, 369 00:19:37,760 --> 00:19:39,679 Speaker 1: asked him a couple of times what were what he 370 00:19:39,760 --> 00:19:43,679 Speaker 1: was doing there. Officer Roads ended up chazing him a 371 00:19:43,680 --> 00:19:46,800 Speaker 1: few times and then shooting him and killing him. And 372 00:19:47,080 --> 00:19:49,320 Speaker 1: when this case sort of made its way through the courts, 373 00:19:49,400 --> 00:19:53,080 Speaker 1: the city of Euclid had already made some news because 374 00:19:53,600 --> 00:19:59,160 Speaker 1: it has police training materials that are highly tasteless and 375 00:19:59,680 --> 00:20:04,439 Speaker 1: in a appropriate with images of officers kicking people and 376 00:20:04,560 --> 00:20:07,080 Speaker 1: saying that the city is protecting the poop out of 377 00:20:07,119 --> 00:20:11,679 Speaker 1: you and using Chris Rock comedy specials to talk about 378 00:20:12,640 --> 00:20:16,679 Speaker 1: the fact that black people should have white friends around 379 00:20:16,680 --> 00:20:19,800 Speaker 1: if they don't want to get beaten up, um and 380 00:20:19,800 --> 00:20:23,760 Speaker 1: things of that nature, and their policy and training materials 381 00:20:23,960 --> 00:20:28,239 Speaker 1: had no information about how to get people out of 382 00:20:28,359 --> 00:20:33,120 Speaker 1: cars the kind of circumstance that Officer Rhodes and Mr 383 00:20:33,200 --> 00:20:36,560 Speaker 1: Stewart were in on the morning that Mr Stewart was killed. 384 00:20:36,840 --> 00:20:42,000 Speaker 1: So Officer Rhodes received qualified immunity. Tell us why Officer 385 00:20:42,160 --> 00:20:46,679 Speaker 1: Rhodes received qualified immunity because the court said there was 386 00:20:46,760 --> 00:20:51,399 Speaker 1: no prior court case was virtually identical fact, even though 387 00:20:51,440 --> 00:20:55,359 Speaker 1: it was well established that police cannot use force against 388 00:20:55,359 --> 00:20:59,240 Speaker 1: people who are not resisting and not use force against 389 00:20:59,280 --> 00:21:02,159 Speaker 1: people who do not pose a threat. There was not 390 00:21:02,240 --> 00:21:05,479 Speaker 1: a prior case with the remarkable facts of a police 391 00:21:05,520 --> 00:21:07,879 Speaker 1: officer trying to get in the car of a person 392 00:21:07,920 --> 00:21:10,000 Speaker 1: who was not resisting or not posing a threat and 393 00:21:10,040 --> 00:21:12,760 Speaker 1: then shooting them. Because there was not a prior court 394 00:21:12,800 --> 00:21:16,720 Speaker 1: case with those identical facts, even though the larger constitutional 395 00:21:16,760 --> 00:21:21,159 Speaker 1: principles were well established, Officer Rhodes received qualified immunity. But 396 00:21:21,200 --> 00:21:24,840 Speaker 1: the Court of Appeal did something additional, which is that 397 00:21:24,960 --> 00:21:30,080 Speaker 1: they held that the fact that Officer Rose received qualified 398 00:21:30,080 --> 00:21:34,560 Speaker 1: immunity also meant that the city could not be held 399 00:21:35,000 --> 00:21:39,880 Speaker 1: liable for Officer Rhodes conduct. And the Supreme Court has 400 00:21:39,880 --> 00:21:45,120 Speaker 1: previously held that cities are actually not entitled to qualified immunity, 401 00:21:45,359 --> 00:21:50,800 Speaker 1: But the city of Euclid essentially received qualified immunity because 402 00:21:51,040 --> 00:21:55,800 Speaker 1: they were protected from any liability because of Officer Rhodes 403 00:21:56,000 --> 00:21:59,560 Speaker 1: qualified immunity. And the way that the rationale worked was 404 00:21:59,640 --> 00:22:05,040 Speaker 1: like this. Cities can be held liable for unconstitutional conduct 405 00:22:05,240 --> 00:22:09,600 Speaker 1: by their officers if they have a policy or custom 406 00:22:09,920 --> 00:22:13,520 Speaker 1: of violating people's rights in similar ways. And one of 407 00:22:13,560 --> 00:22:19,000 Speaker 1: the theories of city liability is that officers were inadequately 408 00:22:19,240 --> 00:22:23,240 Speaker 1: trained and super But what the Court of Appeals said 409 00:22:23,359 --> 00:22:26,240 Speaker 1: was because there was not a prior court case with 410 00:22:26,359 --> 00:22:29,879 Speaker 1: virtually identical facts saying that it was wrong to shoot 411 00:22:29,920 --> 00:22:33,560 Speaker 1: someone who was trying to leave the scene after the 412 00:22:33,640 --> 00:22:37,520 Speaker 1: officer had gotten into the car, then the city couldn't 413 00:22:37,560 --> 00:22:41,960 Speaker 1: have known to train as officers that it was unconstitutional 414 00:22:42,200 --> 00:22:44,919 Speaker 1: to do so so. Because there was not a prior 415 00:22:44,960 --> 00:22:48,200 Speaker 1: court decision with virtually identical facts in the courts mind, 416 00:22:48,359 --> 00:22:53,520 Speaker 1: the city couldn't have known to train them about the 417 00:22:53,560 --> 00:22:59,440 Speaker 1: wrongfulness of that conduct. Did that Sixth Circuit decision contradict 418 00:22:59,560 --> 00:23:03,320 Speaker 1: then Supreme Court precedent, and so why wouldn't the Court 419 00:23:03,359 --> 00:23:07,840 Speaker 1: feel compelled to take the case. Well, in practical reality, 420 00:23:08,160 --> 00:23:12,280 Speaker 1: I think the decision does contradict Supreme Court precedent because 421 00:23:12,280 --> 00:23:17,440 Speaker 1: the Supreme Court ruled in that cities do not have 422 00:23:18,000 --> 00:23:23,560 Speaker 1: qualified immunity. But the rationale that the Court of Appeals 423 00:23:23,640 --> 00:23:27,080 Speaker 1: in Stewart versus City of Euclid offers is that it 424 00:23:27,200 --> 00:23:31,240 Speaker 1: is not saying that cities have qualified immunity. If the 425 00:23:31,359 --> 00:23:37,000 Speaker 1: city had an unconstitutional policy, for example, a policy saying 426 00:23:37,240 --> 00:23:40,160 Speaker 1: you can shoot anyone who's fleeing, that they could still 427 00:23:40,240 --> 00:23:44,159 Speaker 1: be held liable for that. What the Sixth Circuits was 428 00:23:44,240 --> 00:23:47,680 Speaker 1: saying instead was the fact that there was not a 429 00:23:47,680 --> 00:23:53,240 Speaker 1: prior court decision with virtually identical facts. Means that one 430 00:23:53,320 --> 00:23:57,600 Speaker 1: of the key theories for proving cities liable that there 431 00:23:57,640 --> 00:24:02,800 Speaker 1: is an unconstitutional supervision and training of officers couldn't be 432 00:24:02,880 --> 00:24:07,680 Speaker 1: sustained because there was no prior court decision that they 433 00:24:07,760 --> 00:24:11,680 Speaker 1: could have used to train their officers. So the Court 434 00:24:11,760 --> 00:24:15,119 Speaker 1: has refused to take up a string of qualified immunity 435 00:24:15,200 --> 00:24:19,439 Speaker 1: cases recently. What does that suggest to you? Well, the 436 00:24:19,480 --> 00:24:25,280 Speaker 1: Supreme Court has offered some conflicting signals about it dance 437 00:24:25,400 --> 00:24:32,240 Speaker 1: regarding qualified immunity. Beginning in there were several efforts by 438 00:24:32,840 --> 00:24:37,160 Speaker 1: cross ideological group of advocacy organizations to get the Supreme 439 00:24:37,200 --> 00:24:42,000 Speaker 1: Court to reconsider its qualified immunity doctrine, and those appeals 440 00:24:42,040 --> 00:24:44,400 Speaker 1: to the Court were inspired in part by the fact 441 00:24:44,480 --> 00:24:48,399 Speaker 1: that both Justices Clarence Thomas and Sonia Soto Mayor had 442 00:24:48,560 --> 00:24:52,480 Speaker 1: indicated that they were critics of the doctrine and open 443 00:24:52,560 --> 00:24:57,879 Speaker 1: to reconsidering the doctrine. And then in the Supreme Court 444 00:24:58,119 --> 00:25:02,000 Speaker 1: collected more than a dozen of these cases of qualified 445 00:25:02,000 --> 00:25:05,800 Speaker 1: immunity petitions to the Supreme Court, and they continued to 446 00:25:06,040 --> 00:25:10,239 Speaker 1: recalndar them and recalndar them, suggesting possibly the Court was 447 00:25:10,560 --> 00:25:15,560 Speaker 1: interested in taking some depth toward reconsidering the doctrine. Then 448 00:25:15,680 --> 00:25:20,840 Speaker 1: came the murder of George Floyd and public protests where 449 00:25:21,320 --> 00:25:24,840 Speaker 1: protesters had signs raised in the air thing and qualified immunity, 450 00:25:25,160 --> 00:25:30,120 Speaker 1: and Congress was considering a bill that they're reconsidering now 451 00:25:30,160 --> 00:25:34,240 Speaker 1: that would end qualified immunity, And in that period of time, 452 00:25:34,920 --> 00:25:38,679 Speaker 1: the Supreme Court decided not to hear any of the 453 00:25:38,720 --> 00:25:43,120 Speaker 1: qualified immunity cases that were pending before it, and some 454 00:25:43,359 --> 00:25:45,959 Speaker 1: viewed that as an indication by the Supreme Court that 455 00:25:46,000 --> 00:25:50,440 Speaker 1: they would prefer Congress to step in and address the doctrine. 456 00:25:50,720 --> 00:25:54,960 Speaker 1: Then last summer, the effort to pass the Justice and 457 00:25:55,000 --> 00:25:59,359 Speaker 1: Policing Act proved unfruitful, and there were efforts in the 458 00:25:59,440 --> 00:26:03,560 Speaker 1: States to try to take action unqualified immunity, And in November, 459 00:26:04,920 --> 00:26:07,280 Speaker 1: the Supreme Court issued a decision in a case called 460 00:26:07,280 --> 00:26:11,560 Speaker 1: Taylor versus Rio just that does not reconsider qualified immunity, 461 00:26:11,760 --> 00:26:15,040 Speaker 1: but it stepped back from some of its most aggressive 462 00:26:15,160 --> 00:26:20,160 Speaker 1: language regarding qualified immunity. The Court in this case Taylor says, 463 00:26:20,800 --> 00:26:23,880 Speaker 1: when you have an obvious constitutional violation, you don't need 464 00:26:24,320 --> 00:26:28,639 Speaker 1: a case with virtually identical facts, And some have viewed 465 00:26:29,000 --> 00:26:33,119 Speaker 1: that case Taylor as a way for the Supreme Court 466 00:26:33,400 --> 00:26:37,240 Speaker 1: to step back from the most aggressive descriptions of the 467 00:26:37,359 --> 00:26:42,119 Speaker 1: doctrine and give advocates and court finger hold to deny 468 00:26:42,280 --> 00:26:47,760 Speaker 1: qualified immunity in cases with egregious fact. But the combination 469 00:26:47,800 --> 00:26:50,919 Speaker 1: of denying all of those dirt petitions and issuing the 470 00:26:50,960 --> 00:26:54,879 Speaker 1: decision in Taylor seems to me like an indication that 471 00:26:54,960 --> 00:26:58,320 Speaker 1: the Court does not have the appetite to reconsider qualified 472 00:26:58,359 --> 00:27:02,239 Speaker 1: immunity completely. But they do want to spend signals that 473 00:27:02,520 --> 00:27:06,240 Speaker 1: it's perhaps not as strong as they had said it 474 00:27:06,359 --> 00:27:10,560 Speaker 1: was in recent years. The denial of certain Stewart versus 475 00:27:10,600 --> 00:27:15,119 Speaker 1: City of Euclid is concerning to me because the sixth 476 00:27:15,240 --> 00:27:19,359 Speaker 1: Circuit and several other circuits have ruled that grant to 477 00:27:19,400 --> 00:27:23,760 Speaker 1: qualified immunity for an individual officer really for closes one 478 00:27:23,800 --> 00:27:27,080 Speaker 1: of the most common theories by which cities can be 479 00:27:27,160 --> 00:27:30,440 Speaker 1: held liable for the constitutional violations of their officers. And 480 00:27:30,480 --> 00:27:34,760 Speaker 1: so by the Supreme Court not stepping in to correct 481 00:27:34,840 --> 00:27:38,120 Speaker 1: what I consider to be a clear wrong, they are 482 00:27:38,680 --> 00:27:43,960 Speaker 1: allowing this theory too continue to exist and perhaps strengthen. 483 00:27:44,640 --> 00:27:47,520 Speaker 1: So is there a split in the circuits for how 484 00:27:47,560 --> 00:27:50,480 Speaker 1: they're handling this. There is a split in the circuits. 485 00:27:50,560 --> 00:27:54,320 Speaker 1: There are five circuits that have said that a grant 486 00:27:54,320 --> 00:28:00,600 Speaker 1: of qualified immunity forecloses this failure to train the mal theory, 487 00:28:01,119 --> 00:28:04,040 Speaker 1: the first circuit, the fifth, sixth to eight, and the tenth. 488 00:28:05,080 --> 00:28:09,520 Speaker 1: Uh So, so there is a there is a split. 489 00:28:09,640 --> 00:28:14,399 Speaker 1: And then there's three circuits that have said that the 490 00:28:14,520 --> 00:28:17,480 Speaker 1: finding that the right was not clearly established doesn't preclude 491 00:28:17,480 --> 00:28:21,280 Speaker 1: a finding of municipal liability um. And then the remainder 492 00:28:21,320 --> 00:28:25,200 Speaker 1: I think have not ruled clearly on this point. Qualified 493 00:28:25,200 --> 00:28:29,399 Speaker 1: immunity seems to be, at least on its face, what's 494 00:28:29,440 --> 00:28:35,200 Speaker 1: holding up the police reform bills. That's what it sounds like, 495 00:28:35,600 --> 00:28:40,000 Speaker 1: qualified immunity and perhaps also standards for criminal prosecutions of officers. 496 00:28:40,800 --> 00:28:43,120 Speaker 1: Unless the Supreme for It takes this up, it seems 497 00:28:43,120 --> 00:28:48,080 Speaker 1: like it's going to remain just this partisan issue now. Unfortunately, 498 00:28:48,200 --> 00:28:51,240 Speaker 1: I think that that that could well be true. I'm 499 00:28:51,280 --> 00:28:56,440 Speaker 1: an optimist to a fault and hold out hope that 500 00:28:56,800 --> 00:29:01,720 Speaker 1: Congress can find their way to a resil solution regarding 501 00:29:01,800 --> 00:29:06,560 Speaker 1: qualified immunity. I think it's it's unfortunate that they are 502 00:29:07,200 --> 00:29:10,520 Speaker 1: not closer to agreement on this point. And I the 503 00:29:10,600 --> 00:29:13,520 Speaker 1: reason I think it's unfortunate, but it means, of course, 504 00:29:13,560 --> 00:29:16,840 Speaker 1: both because I think that the that the law should go, 505 00:29:17,200 --> 00:29:20,719 Speaker 1: but it's also because I think that the the verity 506 00:29:20,800 --> 00:29:26,160 Speaker 1: of opposition to reform is really based on misunderstanding of 507 00:29:26,160 --> 00:29:30,640 Speaker 1: what qualified immunity is and what it does. And to 508 00:29:30,800 --> 00:29:36,160 Speaker 1: take one example, a common refrain by defenders qualified immunity 509 00:29:36,320 --> 00:29:40,560 Speaker 1: is that it's necessary to prevent officers from being bankrupted 510 00:29:41,000 --> 00:29:45,960 Speaker 1: for making good faith mistakes. But that concern and the 511 00:29:46,040 --> 00:29:48,600 Speaker 1: concern that officers would be bankrupted for making good faith 512 00:29:48,600 --> 00:29:53,320 Speaker 1: mistakes of qualified immunity went away. Simply misunderstand the way 513 00:29:53,360 --> 00:29:55,840 Speaker 1: in which these cases are brought, the way in which 514 00:29:55,880 --> 00:30:00,000 Speaker 1: their result, and the way in which they're compensated. UH. 515 00:30:00,000 --> 00:30:03,240 Speaker 1: When I looked at police misconduct lawsuits around the country 516 00:30:03,520 --> 00:30:06,440 Speaker 1: in eighty one jurisdictions over a six year period, I 517 00:30:06,560 --> 00:30:10,360 Speaker 1: found that ninety nine point nine percent of the dollars 518 00:30:10,360 --> 00:30:13,200 Speaker 1: paid to plaintiffs and police misconduct cases where they had 519 00:30:13,280 --> 00:30:17,040 Speaker 1: overcome qualified immunity, that money was paid by taxpayers, not 520 00:30:17,120 --> 00:30:20,280 Speaker 1: by individual officers. I found only two of the eight 521 00:30:20,440 --> 00:30:24,960 Speaker 1: one states jurisdictions in which officers had made contributions, and 522 00:30:25,000 --> 00:30:27,560 Speaker 1: the average that they paid was two thousand dollars. This 523 00:30:27,760 --> 00:30:33,120 Speaker 1: is because of indemnification agreements, policies, and statutes. These are 524 00:30:33,720 --> 00:30:38,480 Speaker 1: obligations that local governments provide lawyers and pay for any 525 00:30:38,480 --> 00:30:42,240 Speaker 1: settlements or judgments entered against their officers while they're doing 526 00:30:42,280 --> 00:30:45,880 Speaker 1: their job. And those agreements and statutes and policies are 527 00:30:45,880 --> 00:30:48,640 Speaker 1: going to continue to be in existence if qualified immunity 528 00:30:48,760 --> 00:30:52,160 Speaker 1: is eliminated. So qualified immunity is not the protection that 529 00:30:52,280 --> 00:30:56,640 Speaker 1: officers are hoping for against bankruptcy if indemnification and the 530 00:30:56,680 --> 00:30:59,800 Speaker 1: idea that officers are going to be found liable for 531 00:31:00,040 --> 00:31:04,360 Speaker 1: good faith mistakes misunderstands the scope of the Constitution. The 532 00:31:04,400 --> 00:31:10,560 Speaker 1: Supreme Court Fourth Amendment doctrine already protects against liability for 533 00:31:10,840 --> 00:31:16,320 Speaker 1: reasonable mistakes. That's why people who are wrongfully arrested, who 534 00:31:16,320 --> 00:31:19,560 Speaker 1: are searched even when they have nothing on them, people 535 00:31:19,600 --> 00:31:23,120 Speaker 1: who are shot when they are unarmed, can all have 536 00:31:23,240 --> 00:31:26,920 Speaker 1: their claims dismissed, not because of qualified immunity, but because 537 00:31:27,000 --> 00:31:31,400 Speaker 1: there has been no Fourth Amendment violation. So my optimism 538 00:31:31,560 --> 00:31:34,360 Speaker 1: that we can reach some sort of agreement in Congress 539 00:31:34,520 --> 00:31:38,360 Speaker 1: is pressed on the idea that both sides can come 540 00:31:38,400 --> 00:31:42,480 Speaker 1: together and really appreciate the realities a civil rights litigation 541 00:31:42,560 --> 00:31:45,560 Speaker 1: and the realities of the role qualified immunity plays and 542 00:31:45,600 --> 00:31:49,000 Speaker 1: civil rights violations and litigation. I think if we could 543 00:31:49,400 --> 00:31:53,360 Speaker 1: get to the table together and share our understanding of 544 00:31:53,400 --> 00:31:57,360 Speaker 1: the role that qualified immunity plays, that we could reach 545 00:31:57,520 --> 00:32:01,840 Speaker 1: agreement on a path forward without qualified immunity. One other 546 00:32:01,920 --> 00:32:05,960 Speaker 1: thing that I find very troublesome about the City of 547 00:32:06,000 --> 00:32:12,080 Speaker 1: Euclid case is that having a qualified immunity finding insulate 548 00:32:12,160 --> 00:32:17,600 Speaker 1: the city from liability assumes that cities actually would train 549 00:32:17,680 --> 00:32:21,600 Speaker 1: their officers about the facts and holdings of these cases 550 00:32:21,600 --> 00:32:25,280 Speaker 1: that clearly establish the law right because the idea that 551 00:32:25,360 --> 00:32:28,600 Speaker 1: the fact that there's not a prior court decision with 552 00:32:28,720 --> 00:32:33,360 Speaker 1: virtually identical facts to those faced by Mr Stewart, the 553 00:32:33,440 --> 00:32:36,360 Speaker 1: idea that that would protect the city from liability suggests 554 00:32:36,400 --> 00:32:39,560 Speaker 1: that if there were such a case, the city would 555 00:32:39,720 --> 00:32:44,480 Speaker 1: train their officers about it. But when I researched police 556 00:32:44,560 --> 00:32:50,320 Speaker 1: training throughout California, I found that officers are not actually 557 00:32:50,360 --> 00:32:53,680 Speaker 1: trained about the facts and holdings of the kinds of 558 00:32:53,760 --> 00:32:58,600 Speaker 1: cases that clearly established the law for qualified immunity purposes. Instead, 559 00:32:58,640 --> 00:33:03,280 Speaker 1: they're taught the general principles regarding uses of force and 560 00:33:03,320 --> 00:33:07,960 Speaker 1: then get comfortable applying those principles in a variety of circumstances. 561 00:33:08,080 --> 00:33:12,040 Speaker 1: And so that evidence is, to my mind, another reason 562 00:33:12,120 --> 00:33:15,520 Speaker 1: why qualified immunity doesn't make any sense of the doctrine, 563 00:33:15,640 --> 00:33:18,680 Speaker 1: because the doctrine is partially justified on this idea that 564 00:33:19,120 --> 00:33:22,520 Speaker 1: officers need to be on notice of the unconstitutionality of 565 00:33:22,560 --> 00:33:25,440 Speaker 1: their conduct. But if they're not actually trained about the 566 00:33:25,520 --> 00:33:30,200 Speaker 1: court cases, then the doctrine shouldn't be so dependent on 567 00:33:30,240 --> 00:33:33,520 Speaker 1: whether there's prior court decision was virtually identical facts. Thanks 568 00:33:33,560 --> 00:33:36,360 Speaker 1: for being on The Bloomberg Law Show. That's Professor Joanna 569 00:33:36,440 --> 00:33:39,200 Speaker 1: Schwartz of u c l A Law School. And that's 570 00:33:39,200 --> 00:33:41,760 Speaker 1: it for this edition of The Bloomberg Law Show. I'm 571 00:33:41,840 --> 00:33:44,360 Speaker 1: June Grasso. Thanks so much for listening, and please tune 572 00:33:44,360 --> 00:33:46,480 Speaker 1: into The Bloomberg Law Show every week night at ten 573 00:33:46,520 --> 00:33:48,840 Speaker 1: p m. Eastern right here on Bloomberg Radio