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Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio.

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Speaker 1: Calla lawyer turn a q and on shaman invading the

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Speaker 1: capital in Viking gear into a peace loving yoga enthusiast.

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Speaker 1: That would be a stunning legal feat. But some lawyers

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Speaker 1: defending those charge in the Capital riot are looking for

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Speaker 1: any way to get around the virtually irrefutable video and

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Speaker 1: photographic evidence of their clients participation in the riot. Court

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Speaker 1: filings and hearings indicate others may use a Trump made

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Speaker 1: me do it defense. Yes, the Capitol, take the cabal

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Speaker 1: the capoy right now. Yeah. The Just Security blog has

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Speaker 1: together footage of many videos from within the crowd showing

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Speaker 1: the reaction to Trump's speech before the attack on the Capitol.

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Speaker 1: Could it provide support for a defense that the rioters

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Speaker 1: acted in response to Trump's violent rhetoric? Joining me as

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Speaker 1: Bloomberg Legal reporter David Yaffee beleny, So, David, there was

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Speaker 1: a man who was easily identifiable and stood out from

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Speaker 1: the very beginning because he was half naked and wearing

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Speaker 1: some kind of Viking head dress with horns. But his

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Speaker 1: lawyer is now saying he's a peace loving yoga enthusiast

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Speaker 1: whose hero is Mahatma Gandhi. Yes, so that's Jacob Chansley,

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Speaker 1: who's better known probably as the q and On Shaman.

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Speaker 1: He's an adherent of the Q and On a conspiracy

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Speaker 1: theory and and a sort of leader in that world

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Speaker 1: who shown up at a lot of far right protests

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Speaker 1: over the last few months. And yes, he showed up

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Speaker 1: at the riot dress and a horned coyote skin head

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Speaker 1: dress with an air middriff covered with tattoos, and he

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Speaker 1: was photographed Danny at the day is that Mike Tense

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Speaker 1: had deserted just moments earlier in the Senate chamber, and

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Speaker 1: so that image of him became one of the defining

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Speaker 1: images of the riot, especially in the early days. And

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Speaker 1: he in some ways sort of the face of the

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Speaker 1: mob that invaded the capital. So how is his lawyer

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Speaker 1: trying to portray him? Now? His lawyer is now arguing

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Speaker 1: that actually, this guy is a yoga loving, peace loving

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Speaker 1: person whose personal hero is Mohamma Gandhi. You know, you

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Speaker 1: hear people say, you know, this person wouldn't hurt a fly. Um.

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Speaker 1: The lawyer actually told me that he's heard from several

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Speaker 1: friends of his that rather than killing an insect, he'll

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Speaker 1: he'll pick it up and take it outside and kind

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Speaker 1: of release it back into the wild. But he's that

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Speaker 1: kind of peace loving person. Never mind that he's accused

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Speaker 1: of leaving a threatening note for tense at the Senate

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Speaker 1: days describe the range of charges for the different people

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Speaker 1: involved in the riot. So on the kind of minor end,

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Speaker 1: you've got just basic trespassing. You know, this person entered

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Speaker 1: a government building when they weren't allowed to, and that

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Speaker 1: includes people like Chancey who are photographed in the Senate chamber,

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Speaker 1: and then people who were maybe at the back of

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Speaker 1: the mob and just kind of followed the crowd inside

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Speaker 1: and who might actually be in the position to argue

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Speaker 1: that they didn't know what they were doing was wrong.

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Speaker 1: That's kind of on the minor end. On the more

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Speaker 1: serious end, you've got people who are accused of assault

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Speaker 1: of you know, launching a fire extinguisher at a group

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Speaker 1: of police officers, punching police officers, attacking reporters who are

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Speaker 1: based in the capitol healing government operaty. I mean, everybody's

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Speaker 1: seen the photos of one of the defendants out of

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Speaker 1: Johnson carrying off elect turns from Capitol building. There was

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Speaker 1: also a man who was in Nancy Policie's office and

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Speaker 1: took a letter from a desk. That kind of theft

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Speaker 1: is also being charged. And then members of the far

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Speaker 1: right group that Oathkeepers and have been charged with conspiracy

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Speaker 1: to divert the democratic process. And that's the most serious

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Speaker 1: charge that we've seen, and we're expecting to see more

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Speaker 1: of those in the coming months. We're also expecting a

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Speaker 1: felony murder charge eventually related to death the police officer

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Speaker 1: Brian Sicnik, who is eye as the result of injuries

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Speaker 1: that he sustained at the Capitol. So we know that

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Speaker 1: law enforcement is going through all these images and video,

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Speaker 1: our defense lawyers doing the same and what are they

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Speaker 1: looking for? Sure? Yeah, defense layers are absolutely doing the

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Speaker 1: same thing. They're pouring through the video footage, news footage,

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Speaker 1: social media code. They're looking for evidence that might be exculpatory,

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Speaker 1: that might paint their clients in a more positive light. So,

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Speaker 1: for instance, Jacob Chancelly's lawyer told me that he found

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Speaker 1: footage of Chancelly leading a prayer in the Capitol and

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Speaker 1: found footage of him urging other rioters to lead the

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Speaker 1: building and While that might not actually offend the prostitution's case,

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Speaker 1: it could certainly be helpful at the sentencing stage in

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Speaker 1: kind of persuading the judge that, you know, this person

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Speaker 1: was trying to do the right thing when they were

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Speaker 1: in the building. There's video of rioters in the act

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Speaker 1: of stealing things like the podium you mentioned, smashing windows,

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Speaker 1: throw things at police. It seems like it would be

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Speaker 1: very hard for a defense attorney to defend a client

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Speaker 1: in the face of video evidence like that, with the

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Speaker 1: job of the defense the pity to come up with

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Speaker 1: a defense for basically anything, But yes, it would be

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Speaker 1: very difficult to argue that somebody who was caught on

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Speaker 1: video smashing a window and then climbing through it didn't

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Speaker 1: realize that it was legal to trust ass or that

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Speaker 1: there was no intent to commit a crime in that action.

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Speaker 1: I think that's basically an impossible case to argue. So

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Speaker 1: we're gonna be a tough position, and they're probably going

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Speaker 1: to be sense to prison, as they probably should be.

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Speaker 1: But you know, defense players might try the same source

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Speaker 1: of tactics that we've been discussing, sort of creating a

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Speaker 1: narrative around their clients that paints them in a more

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Speaker 1: positive light, you know, puts their actions in context. They

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Speaker 1: might argue their client is showing remorse. They might try

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Speaker 1: to strike a deal with the prosecutors in which their

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Speaker 1: clients gives information on other people involved in the riot

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Speaker 1: and exchange for some sort of leniency. So there are

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Speaker 1: a range of things that depends players and trying to do.

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Speaker 1: Even in cases where it's totally clear cut that somebody

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Speaker 1: was breaking the law of the Capitol. Yeah, I expect

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Speaker 1: we're going to be seeing a lot of plea deals

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Speaker 1: and co operators. Now, some people plan to use former

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Speaker 1: President Trump as a defense. How would that work? So

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Speaker 1: this is a legal concept known as the public authority defense,

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Speaker 1: and it's the argument that somebody who was committing a

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Speaker 1: crime was just following orders from a government official. So,

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Speaker 1: you know, a really sort of mundane example of this

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Speaker 1: might be if the mayor of a small town told

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Speaker 1: you to park in a certain place where actually parking

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Speaker 1: was not allowed and got in trouble, you know, you

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Speaker 1: could argue that you were directed by a local government

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Speaker 1: official to do this. It's obviously a lot more more

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Speaker 1: complicated in the case of the capital riot. That basically

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Speaker 1: the argument would be that Trump when he got up

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Speaker 1: on the stage at the rally before the riot at

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Speaker 1: the Capitol and said fight harder and marched at the Capitol.

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Speaker 1: You know that was an explicit instruction to the protesters

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Speaker 1: who were gathered there to go invade the center of

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Speaker 1: American democracy. That would be the argument sort of the

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Speaker 1: Trump made me do it defense. The fact that lawyers

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Speaker 1: for writers and Writers themselves are making that claim could

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Speaker 1: actually be helpful with Democrats as they make their case

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Speaker 1: in the impeachment trial where we're Trump has been charged

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Speaker 1: with with incitement of a mob, and so it's not

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Speaker 1: a defense that many legal experts think is a kind

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Speaker 1: of obvious winner, but it's certainly a direction that somebody

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Speaker 1: lawyers thinking of going in. Has that defense ever worked

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Speaker 1: in a situation analogous to the Capital riot, That's a

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Speaker 1: good question. I actually don't know. Context which is often applied,

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Speaker 1: is you know, somebody doing undercover work for like the

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Speaker 1: CIA or some sort of intelligence gathering operation, and they

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Speaker 1: break the law that they're following orders from higher up

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Speaker 1: in the law enforcement capacity. That's the situation when it

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Speaker 1: might come into place. One of the people who might

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Speaker 1: be raising that defense is Richard Barnett, who also became

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Speaker 1: one of the poster boys of the riot because of

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Speaker 1: a picture of him sitting at a desk with his

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Speaker 1: feet up in Speaker Nancy Pelosi's office. I wonder how

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Speaker 1: his lawyer will frame the defense. Did Trump make him

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Speaker 1: put his feet up and leave an opscene note for Pelosi?

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Speaker 1: It seems pretty far fetched. Yes, on one level, does

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Speaker 1: seem far fetched because obviously Trump didn't get up there

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Speaker 1: and lay out the specific things that these people are

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Speaker 1: accused of doing and say do those things. But I

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Speaker 1: think defense lawyers would argue these are people who thought

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Speaker 1: that they were doing the president's bidding, that the election

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Speaker 1: has been stolen, and that the president of the US,

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Speaker 1: who has access to the Capitol, had told them to

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Speaker 1: go inside and cause some trouble. And again, I think

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Speaker 1: this is unlikely to lead to acquittal, but this is

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Speaker 1: a factor that at the sentence stage could play a

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Speaker 1: role and be helpful for some of these people. I

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Speaker 1: found it fascinating that Barnett's bail hearing went on for

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Speaker 1: something like five hours and they talked about everything from

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Speaker 1: him being a kind person to rescuing a Pomeranian. Tell

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Speaker 1: us about that, Yeah, This was a pretty unusual bail

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Speaker 1: hearing that the magistrate in the Arizona who was overseeing it,

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Speaker 1: allowed Barnett's lawyer, Anthony Siano, to call a series of witnesses,

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Speaker 1: including Barnett's longtime partner and her mother and her daughters,

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Speaker 1: a bunch of friends and acquaintances of Barnett. Basically, if

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Speaker 1: the lawyer is trying to paint a picture of Barnett

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Speaker 1: to counter the narrative in the media that this is

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Speaker 1: this kind of smug guy with its feed up on

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Speaker 1: Pelosi's death, no respect for the democratic process. He was

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Speaker 1: trying to paint Barnett as basically a good person who

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Speaker 1: has a solid family and who's honest and reliable and

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Speaker 1: who the judge could trust to kind of comply with

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Speaker 1: the terms of bail. And actually Siano was successful in

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Speaker 1: making that case at first, in Barnett was granted bail,

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Speaker 1: he was restricted to stay at home under pretty severe condition.

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Speaker 1: Kind of a success that this strategy lawyers pursuing. But

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Speaker 1: then prosecutors appealed the ruling to the judge in Washington

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Speaker 1: was ultimately going to be overseeing the case, and that

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Speaker 1: judge blocked it and sent Barnett to jail and Washington

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Speaker 1: while the case received, and some of the defense attorneys

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Speaker 1: are going to try to show their clients didn't have

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Speaker 1: the intent to commit a crime. Basically, all criminal charges

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Speaker 1: require proofs that somebody was intending to commit the crime,

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Speaker 1: and in most cases that's not hard to show. But

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Speaker 1: in a lot of these rioting cases, you'll have social

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Speaker 1: media footage of somebody kind of milling around in the

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Speaker 1: Capitol rotunda, part of this mob. But if they were

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Speaker 1: at the back of the crowd and they entered through

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Speaker 1: the main doors, which eventually were flung wide open, and

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Speaker 1: the police weren't really doing anything and they just walked in,

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Speaker 1: they might be able to plausibly argue that they did

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Speaker 1: not intend to break the law, They did not realize

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Speaker 1: they're breaking the law, they were just following a crowd inside. Again,

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Speaker 1: it's unclear whether that will work in the courtroom, and

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Speaker 1: certainly prosecutors might point to things that writers said ahead

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Speaker 1: of time or even said after the riot. I mean,

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Speaker 1: if you were photographed just milling out of the rotunda,

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Speaker 1: then later you posted on Facebook, yeah, we just laid

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Speaker 1: to each The Capitol prosecute as might say, Okay, this

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Speaker 1: person said they were laying siege. It clearly wasn't intent

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Speaker 1: to rap the laws. So it's not a defense that

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Speaker 1: will obviously work for everybody, but it's something that defense

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Speaker 1: lawyers have in their arsenals there preparing to argue these

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Speaker 1: cases describe the range of charges for the different people

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Speaker 1: involved in the riot. So on the kind of minor end,

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Speaker 1: you've got just basic trespassing. You know, this person entered

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Speaker 1: a government building when they weren't allowed to, and that

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Speaker 1: includes people like Chancey who are photographed in the Senate chamber,

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Speaker 1: and then people who were maybe at the back of

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Speaker 1: the mob and just kind of follow the crowd inside

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Speaker 1: and who might actually be in the position to argue

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Speaker 1: that they didn't know what they were doing was wrong.

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Speaker 1: That's kind of on the minor end. On the more

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Speaker 1: serious end, you've got people who are accused of the

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Speaker 1: assault of you know, launching a fire extinguisher at a

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Speaker 1: group of police officers, punching police officers, attacking recorders who

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Speaker 1: are based in the Capitol healing government operaty. I mean,

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Speaker 1: everybody's seen the photos of one of the defendants out

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Speaker 1: of Johnson carrying off a left turn from the Capital

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Speaker 1: building um. There was also a man who is in

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Speaker 1: anc Policie's office and took a letter from the death

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Speaker 1: That kind of theft is also being charged. And then

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Speaker 1: members of the far right group that Oathkeepers have been

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Speaker 1: charged with conspiracy to subvert the democratic process, and that's

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Speaker 1: the most serious charge that we've seen, and we're expecting

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Speaker 1: to see more of those in the coming months. We're

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Speaker 1: also expecting a felony murder charge eventually related to death

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Speaker 1: the police officer Brian Sicknik, who has died as a

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Speaker 1: result of injuries that be sustained at accountable Prosecutors are

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Speaker 1: saying that they may upgrade the charges as time goes on. Yes,

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Speaker 1: they said that. I mean, it's not clear who has

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Speaker 1: already been charged might later be charged with something like that,

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Speaker 1: or whether there are people that we don't know about

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Speaker 1: yet who they're investigating and might end up charging with

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Speaker 1: conspiracy or subedition. But because certainly the direction that the

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Speaker 1: investigation is heading kind of away from these sort of

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Speaker 1: serious but not the most serious offenses to major investigations

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Speaker 1: into whether this riot was coordinated ahead of times. There

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Speaker 1: were serious planning involved between all right militia groups across

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Speaker 1: different states to pull us off. So the FBI estimates

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Speaker 1: that roughly eight hundred people entered the building. Apparently they're

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Speaker 1: debating within the Justice Department and law enforcement whether to

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Speaker 1: charge people with unlawful entry, who, as you've described, just

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Speaker 1: sort of we're part of the crowd and there's no

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Speaker 1: evidence that they did anything else. Yeah, there have been

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Speaker 1: reports that there's kind of internal debate at main Justice,

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Speaker 1: at the U. S Attorney's Office in Washington, which is

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Speaker 1: leading the investigation, over whether they charge everyone. You've got

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Speaker 1: hundreds of people, some of them were hardly doing anything

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Speaker 1: even if they were in there. Others were attacking reporters

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Speaker 1: and police officers. So you know where does it makes

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Speaker 1: sense to focus your prosecutorial energies, given that you don't

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Speaker 1: want to overwhelm the court system. So there have been

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Speaker 1: reports of that. UM, I would say Michael Sherwin, the

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Speaker 1: acting US Attorney in Washington, UM talked to reporters this

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Speaker 1: week and basically rebutted some of those reports, saying, if

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Speaker 1: you committed a crime, doesn't matter how minor it was,

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Speaker 1: We're going to come after you. UM. So he was

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Speaker 1: certainly making the case that there's no debate. We have

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Speaker 1: total faith in the abilities of the local court system

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Speaker 1: in Washington to handle the surge of cases, and we're

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Speaker 1: going to arrest so many people as we can. UM.

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Speaker 1: With that said, you know, there are probably some people

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Speaker 1: who for whatever reason, will never be identified. You know,

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Speaker 1: they happened not to have shown up in the video footage.

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Speaker 1: They were wearing a face mask and a and a

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Speaker 1: hat or something, and they just couldn't be identified. I mean,

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Speaker 1: the two people have been charged so far out of

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Speaker 1: out of eight hundred, you know, that's only only a

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Speaker 1: quarter of the rioters. UM. And you know, one would

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Speaker 1: think that there's a you know, a not inconsiderable proportion

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Speaker 1: of the people who are in the capital will just

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Speaker 1: never be identified. Have you heard any time frames as

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Speaker 1: to how long it might take the FBI and the

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Speaker 1: Justice Department to find and charge these people? The yeah,

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Speaker 1: they have to on in the just Forment have been

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Speaker 1: pretty clear that, um, this could be a month long investigation,

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Speaker 1: especially as they start building these more complicated cases against

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Speaker 1: uh people who may have planned some sort of assault

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Speaker 1: ahead of time. It just takes a lot longer. I mean,

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Speaker 1: it's very easy to see a photo of Jacob Chansley

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Speaker 1: wearing this head dress on standing at the Senate day,

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Speaker 1: to find them on social media, put together a quick case,

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Speaker 1: and arrest them. That's easy to do, but building these

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Speaker 1: more complicated cases requires traditional tools of law enforce them,

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Speaker 1: like grandjuri subtenas and search warrants. It requires, you know,

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Speaker 1: getting people to talk to you about what somebody might

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Speaker 1: have been planning ahead of time. People, for the most part,

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Speaker 1: we're not going on Facebook and saying, yeah, I coordinated

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Speaker 1: this with this was of six people across these states

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Speaker 1: during this time frame. That's a much harder case to prove,

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Speaker 1: but it's a sort of more significant and important case

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Speaker 1: than Look, here's some random guy who sort of wandered

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Speaker 1: into the Capitol. So yeah, I think it's going to

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Speaker 1: be months before we see any kind of resolution today.

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Speaker 1: This is gonna be a major priority of the justice

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Speaker 1: forman for a long time. The siege was a huge

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Speaker 1: embarrassment for law enforcement agencies across the capital, even ones

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Speaker 1: that weren't directly involved in the security for this event,

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Speaker 1: and there's a sense that they need to kind of

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Speaker 1: prove that they're taking it seriously and move as fast

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Speaker 1: and as aggressively as they can. So far, No one

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Speaker 1: has been arrested in connection with the killing of the

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Speaker 1: Capitol police officer, right, Yeah, we don't have a ton

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Speaker 1: of information on where that investigation stands. Every time we've

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Speaker 1: asked um Michael Sure in the U S. Attorney and

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Speaker 1: officials at the FBI who are involved in that investigation,

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Speaker 1: they've just said it's ongoing. We can't play anything. What

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Speaker 1: we do know is that the officer who died, Brian Sicnik,

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Speaker 1: was hit over the head with a fire extinguisher. He

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Speaker 1: was injured, he sort of made his way back to

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Speaker 1: police headquarters and he ended up dying later. So that's

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Speaker 1: still under investigation. I mean, any time the cop is killed,

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Speaker 1: that's a you know, a huge priority for law enforce

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Speaker 1: them to figure out what happened. So I'm sure we'll

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Speaker 1: see charges eventually, and the officials who are running investigation

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Speaker 1: have said to expect most likely a colony murder charge

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Speaker 1: in that case. Thanks David. That's Bloomberg Legal reporter David

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Speaker 1: Yaffee Bellini and that's it for the sedition of the

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Speaker 1: Bloomberg Launch Podcast. I'm June Grosso. Thanks so much for listening,

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Speaker 1: and remember you can always get the latest legal news

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Speaker 1: on our Bloomberg Launch podcast. You can find them on

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