WEBVTT - Why the Prosecution Failed in Whitmer Kidnapping Plot 0:00:03.200 --> 0:00:07.960 This is Bloomberg Law with June Bresso from Bloomberg Radio. 0:00:09.320 --> 0:00:14.080 Thirteen days of testimony from undercover agents and informant and 0:00:14.200 --> 0:00:17.880 to co defendants who pleaded guilty. There were also the 0:00:17.960 --> 0:00:23.880 secretly recorded conversations, violent social media posts and chat messages. Yet, 0:00:23.960 --> 0:00:27.240 in a stunning defeat for the government, the jury failed 0:00:27.240 --> 0:00:30.320 to convict any of the four defendants in the plot 0:00:30.320 --> 0:00:34.440 to kidnap Michigan Governor Gretchen Whitmer. U s attorney Andrew 0:00:34.479 --> 0:00:38.240 Bird said he believed the prosecution presented a strong case. 0:00:38.840 --> 0:00:43.240 Obviously we're disappointed with the outcome. I thought we had 0:00:44.360 --> 0:00:48.600 the jury to convict fandor's about basically events we put forward. 0:00:49.040 --> 0:00:51.640 But we still believe in the jury system. The defense 0:00:51.720 --> 0:00:57.240 lawyers portrayed the men as unsophisticated weekend warriors, often stoned 0:00:57.320 --> 0:01:01.000 on marijuana and prone to wild talk, who were entrapped 0:01:01.000 --> 0:01:05.360 by the FBI and it's sting operation. Michael Hills represented 0:01:05.400 --> 0:01:08.960 Brandon Concerta, who was acquitted. Our governor was never in 0:01:09.000 --> 0:01:12.080 any danger, and I think the jury, even though they 0:01:12.080 --> 0:01:14.680 didn't get all of it, you know, they smelled enough 0:01:14.720 --> 0:01:18.119 of it. I think what the FBI did is unconstanably. 0:01:18.560 --> 0:01:20.839 This is what I think, and I think the jury 0:01:20.880 --> 0:01:23.800 just sent them a message loud and clear. My guest 0:01:23.840 --> 0:01:26.920 is Matthew Schneider, former U S Attorney for the Eastern 0:01:26.959 --> 0:01:31.039 District of Michigan and a partner at Huntingmanon. Many were 0:01:31.200 --> 0:01:35.200 stunned by the verdict. Were you I was, like a 0:01:35.240 --> 0:01:38.200 lot of people were, And I'm a former prosecutor. I 0:01:38.360 --> 0:01:41.720 work as a defense attorney, and prosecutors and defense attorneys 0:01:41.760 --> 0:01:44.040 alike were stunned at this, and they said that openly 0:01:44.080 --> 0:01:46.800 it was surprising. The government put forth a very strong 0:01:46.840 --> 0:01:48.920 case and it's not the result that a lot of 0:01:48.920 --> 0:01:53.920 people predicted. Two were acquitted, they were hung on another two. 0:01:54.160 --> 0:01:57.920 What were the differences that they would equip some and 0:01:58.000 --> 0:02:02.040 hang on others. There were some significant differences. The two 0:02:02.080 --> 0:02:05.200 that received the hung verdict, those were viewed as kind 0:02:05.200 --> 0:02:08.000 of the ringleaders of this, and the jury found that 0:02:08.040 --> 0:02:10.680 there was not enough evidence to convict them. The two 0:02:10.720 --> 0:02:14.440 that were acquitted. As for those defendants, those were the 0:02:14.440 --> 0:02:17.680 defendants who did not actually go to the governor's house 0:02:18.000 --> 0:02:20.440 and scope it out. There was an event where people 0:02:20.480 --> 0:02:23.440 went to the governor's house or residents and kind of 0:02:23.680 --> 0:02:28.200 watched it, fouled around the driveways and used night vision 0:02:28.360 --> 0:02:30.919 goggles and tried to scope out the place. Well, those 0:02:30.960 --> 0:02:33.880 two defendants, they didn't participate in that, and that might 0:02:33.919 --> 0:02:36.120 have been a dividing line that the jury felt that 0:02:36.160 --> 0:02:39.840 they should be acquitted. Daniel Harris, one of the two acquitted, 0:02:40.200 --> 0:02:43.680 took the stand in his own defense, a risky move 0:02:43.800 --> 0:02:47.960 that apparently worked. What did you see in his testimony? Well, 0:02:48.000 --> 0:02:50.400 we don't know if that's what worked or not, because 0:02:50.400 --> 0:02:53.120 the jury hasn't said. The jurors went out and they 0:02:53.160 --> 0:02:55.960 didn't speak to anybody, So we don't know if it 0:02:56.080 --> 0:02:59.359 was because they believed in the entrapment theory of the defense, 0:02:59.720 --> 0:03:02.280 or that they believed in the defense theory that these 0:03:02.320 --> 0:03:05.240 guys were just kind of making it up in big talkers, 0:03:05.400 --> 0:03:07.680 or that they were kind of, you know, stoned and 0:03:07.800 --> 0:03:10.920 not very sophisticated and not clever enough to actually do this. 0:03:11.360 --> 0:03:14.720 We're not sure. We do know that Harris was acquitted 0:03:14.760 --> 0:03:17.960 of the weapon's charge, which was possessioned of a short 0:03:18.000 --> 0:03:22.280 barrel rifle, and that charge seemed to be that there 0:03:22.360 --> 0:03:25.120 was plenty of evidence for that and for the jury 0:03:25.200 --> 0:03:28.959 to acquit him of that seems quite striking because there 0:03:29.000 --> 0:03:31.600 was plenty of proofs that he had the gun. It's 0:03:31.639 --> 0:03:34.440 not like the kidnapping plot where there was discussion either 0:03:34.520 --> 0:03:37.440 you had the gun or you didn't, and they found 0:03:37.480 --> 0:03:40.080 that he didn't and was he arrested with the gun 0:03:40.200 --> 0:03:43.560 or not. There was a lot of discussion about the 0:03:43.600 --> 0:03:46.680 type of gun it was and the position it was, 0:03:46.760 --> 0:03:49.400 and whether or not it was in pieces at the time. 0:03:49.880 --> 0:03:52.680 But you know a weapon even if it's in separate 0:03:52.720 --> 0:03:55.600 pieces that you know the receiver. If the receiver is 0:03:55.640 --> 0:03:58.800 what you have, that's still classified as a weapon under 0:03:58.800 --> 0:04:02.080 federal law. But there was explanation given in this testimony 0:04:02.120 --> 0:04:04.760 that always in different pieces, and perhaps that's something that 0:04:04.760 --> 0:04:08.000 the jury took into account. So there were thirteen days 0:04:08.040 --> 0:04:13.160 of evidence undercover FBI agents and FBI informant to co 0:04:13.360 --> 0:04:18.799 defendants who pleaded guilty. They were secretly recorded conversations, violence, 0:04:18.880 --> 0:04:23.080 social media posts, etcetera, etcetera. So it seemed like the 0:04:23.120 --> 0:04:27.719 prosecution had a lot of evidence. Where did it fail? Well, 0:04:27.760 --> 0:04:29.680 they did have a lot of evidence. But if you're 0:04:29.680 --> 0:04:31.799 going to be looking at this case in the future 0:04:31.920 --> 0:04:34.480 as to how this case was brought, it will be 0:04:34.520 --> 0:04:37.400 a big question about did they have to take down 0:04:37.400 --> 0:04:40.240 this case. Now, did they have to end the investigation 0:04:40.240 --> 0:04:42.560 when they did, and what would have been the result 0:04:42.720 --> 0:04:45.880 if instead of ending the investigation they would have continued. 0:04:46.160 --> 0:04:50.040 Would they have developed, for example, evidence from the defendants 0:04:50.040 --> 0:04:52.920 that they had set a firm date for the kidnapping, 0:04:52.960 --> 0:04:55.400 which did not happen in this case. But if they 0:04:55.440 --> 0:04:58.320 would have kept the investigation of lives, maybe they would 0:04:58.320 --> 0:05:01.920 have gotten more evidence convince the jury. Now, we all 0:05:02.000 --> 0:05:05.919 understand that investigations sometimes have to be taken down for 0:05:06.080 --> 0:05:09.600 officers safety and things like that, but still that's going 0:05:09.640 --> 0:05:12.120 to be a very nagging question in the eyes of 0:05:12.160 --> 0:05:15.960 the Justice Department for many cases moving forward. We just 0:05:16.040 --> 0:05:20.360 go back a bit and explain when they decided to 0:05:20.640 --> 0:05:24.680 end the FBI investigation. At what point they ended it 0:05:24.839 --> 0:05:28.919 as the defendants were walking into a restaurant to have launch. Okay, 0:05:29.000 --> 0:05:32.400 so that appears to be an innocuous time, but it 0:05:32.480 --> 0:05:34.839 was a time when law enforcement could get together and 0:05:34.880 --> 0:05:37.200 it was an open area where they could all swoop 0:05:37.240 --> 0:05:40.280 in and have a safe arrest. That left out some 0:05:40.440 --> 0:05:43.000 evidence that I think might have come forth if they 0:05:43.000 --> 0:05:46.599 would have continued the recording devices and continued the conversations 0:05:47.240 --> 0:05:51.600 the FBI ending the operation before they had evidence of 0:05:51.640 --> 0:05:56.120 the defendants making definitive plans to kidnap the governor. How 0:05:56.120 --> 0:05:59.120 did that help the defense? That is the defense argument, 0:05:59.120 --> 0:06:01.200 and that they're saying, this is all a bunch of talk. 0:06:01.360 --> 0:06:03.960 They didn't have any actions, and there's nothing that the 0:06:03.960 --> 0:06:06.320 government can show for it. Now, look, there's still two 0:06:06.320 --> 0:06:09.680 defendants still to be retried, and there are two defendants 0:06:09.720 --> 0:06:13.320 who pleaded guilty. And when you plead guilty in federal court, 0:06:13.600 --> 0:06:15.640 you go into the courtroom and you say I'm pleading 0:06:15.640 --> 0:06:19.520 guilty because I am guilty. And those defendants testified and 0:06:19.560 --> 0:06:22.400 they said that they were guilty of this conspiracy. They 0:06:22.480 --> 0:06:25.440 did commit the crime, and they were testifying so that 0:06:25.480 --> 0:06:28.880 they could help the prosecution and hopefully get a sentence reduction. 0:06:29.240 --> 0:06:32.280 That makes it even more surprising that the jury didn't 0:06:32.320 --> 0:06:36.680 believe them. Oftentimes, jurors don't like cooperators, they don't like 0:06:36.800 --> 0:06:39.400 people who were once on one side and then switched 0:06:39.400 --> 0:06:42.200 to the other side. The defense painted them as liars 0:06:42.200 --> 0:06:44.200 who were only trying to get a sentence reduction, and 0:06:44.240 --> 0:06:46.839 that it happens in every case. This case, also, however, 0:06:46.880 --> 0:06:50.279 had undercover FBI informant, There was an informant, there was 0:06:50.320 --> 0:06:53.320 an agent. There was plenty of testimony here and plenty 0:06:53.320 --> 0:06:55.960 of evidence. But the defense theory, again, we don't know 0:06:56.000 --> 0:06:58.080 because we don't know what the jury has to say, 0:06:58.120 --> 0:07:01.080 but it appears that it worked very favorable in the 0:07:01.160 --> 0:07:06.000 defense's mind. The lawyer for Brandon concert A blamed overly 0:07:06.000 --> 0:07:09.000 aggressive FBI informans. He said, I think what the FBI 0:07:09.160 --> 0:07:12.200 did is unconscionable, and I think the jury just sent 0:07:12.280 --> 0:07:15.400 them a message loud and clear. Is that the case 0:07:15.440 --> 0:07:18.840 because they hung on two of the defendants. Well, if 0:07:18.880 --> 0:07:21.760 they were loud and clear unconscionable, you would have had 0:07:21.800 --> 0:07:24.760 four acquittals, and we didn't have that. What we had 0:07:24.840 --> 0:07:27.160 is a jury saying I can find these two who 0:07:27.160 --> 0:07:29.280 were not present at the stake out of the Governor's 0:07:29.320 --> 0:07:32.559 house not guilty, but I'm not sure, and we can't 0:07:32.600 --> 0:07:35.280 reach a verdict on the other two. And we also, 0:07:35.320 --> 0:07:38.160 as I indicated, had to be im plead guilty. So 0:07:38.440 --> 0:07:40.920 that really remains to be seen. The government is going 0:07:41.000 --> 0:07:43.800 to go back to square one and try this case again, 0:07:44.080 --> 0:07:47.120 which is not unusual. I mean John Gotti, for example, 0:07:47.240 --> 0:07:50.520 was tried four times by the Justice Department, So it's 0:07:50.520 --> 0:07:53.080 not surprising that they would give this another shot with 0:07:53.120 --> 0:07:57.480 a new jury, rush instructions, fresh arguments. Do you think 0:07:57.480 --> 0:08:02.440 the prosecution will try to present the case differently, Yes, 0:08:02.520 --> 0:08:05.280 I do, because the jury asked a lot of questions 0:08:05.280 --> 0:08:08.960 about the weapons involved in the explosives. Well, jurors don't 0:08:09.040 --> 0:08:12.320 ask questions if they understand all the evidence and the 0:08:12.400 --> 0:08:16.040 presentation was flawless. They only ask questions if they don't 0:08:16.160 --> 0:08:20.000 understand what just took place. And so I'm certain that 0:08:20.080 --> 0:08:23.400 the government will be doing a closer explanation about the 0:08:23.440 --> 0:08:26.680 bombs and that type of evidence in this next retrial. 0:08:27.320 --> 0:08:31.120 The jury pool was drawn from a twenty two county 0:08:31.240 --> 0:08:35.400 region in western and northern Michigan that is largely rural, 0:08:35.520 --> 0:08:39.959 Republican and conservative. Is it possible that the prosecution just 0:08:40.040 --> 0:08:43.840 can't get a jury that will convict in this case, Well, 0:08:43.880 --> 0:08:47.960 the prosecution picked a jury along with the defense, and 0:08:48.080 --> 0:08:50.360 certainly some of the members of the jury, a lot 0:08:50.400 --> 0:08:53.680 of them actually owned weapons. A lot of them expressed, 0:08:53.760 --> 0:08:58.280 you know, some mistrust for government entities, but not overly 0:08:58.320 --> 0:09:00.480 so that would kick them off the jury a pool. 0:09:00.920 --> 0:09:02.600 But I think you have a lot of people in 0:09:02.679 --> 0:09:05.560 this jury pool who don't like the government, and you 0:09:05.600 --> 0:09:08.880 know you have a constitutional right to dislike Governor Whitmer 0:09:08.960 --> 0:09:12.080 or even hate her. That's your constitutional right. People hate 0:09:12.200 --> 0:09:14.839 people love her. The fact is is what no one 0:09:14.880 --> 0:09:18.560 should take from this verdict is that it's okay to 0:09:18.679 --> 0:09:23.160 do harm to a public official, because it's not okay 0:09:23.280 --> 0:09:26.360 to threaten to kidnap Governor Whitmer. The only thing you 0:09:26.400 --> 0:09:29.679 can take from this verdict is that the government failed 0:09:29.880 --> 0:09:33.920 to convince the jury beyond a reasonable doubt. Some politicians 0:09:33.920 --> 0:09:39.760 have expressed fears about these acquittals. So, for example, Michigan 0:09:39.760 --> 0:09:43.760 State Representative Lori Phutsky tweeted that a man who threatened 0:09:43.760 --> 0:09:46.800 to kill her in was acquitted. Quote, the next time 0:09:46.840 --> 0:09:48.880 you ask why we can't get good people to run 0:09:48.920 --> 0:09:53.119 for office, consider today's verdict. This won't be taken seriously 0:09:53.200 --> 0:09:58.360 until someone dies. Do these acquittals send out a message 0:09:58.440 --> 0:10:02.839 that you're not going to be held accountable. That's going 0:10:02.880 --> 0:10:06.480 to be a great question after the retrial of this case, 0:10:06.559 --> 0:10:10.480 because these two defendants are still out there now. If 0:10:10.520 --> 0:10:14.320 those defendants are found not guilty, a lot of questions 0:10:14.320 --> 0:10:17.480 will be asked about the safety of public officials. But 0:10:17.720 --> 0:10:20.080 we're not quite there yet, so I don't think we're 0:10:20.160 --> 0:10:24.040 quite in the position to make those calculations or conclusions 0:10:24.080 --> 0:10:27.280 so far. Did you see a great difference in the 0:10:27.320 --> 0:10:31.480 way the defense attorneys handled the case. Each of the 0:10:31.520 --> 0:10:34.760 defense attorneys took a different, slightly different approach. Some of 0:10:34.800 --> 0:10:38.000 them really hammered on the fact that there were government informants, 0:10:38.400 --> 0:10:41.400 and the government informants and the FBI was driving this 0:10:41.440 --> 0:10:43.920 case from the beginning to the end. Maybe that's what 0:10:43.960 --> 0:10:48.119 the jury believed and caught onto. Other times, defense attorneys 0:10:48.400 --> 0:10:52.000 really hit on the issue that the defendants were not competent. 0:10:52.120 --> 0:10:54.320 They raised a bunch of other things that they could 0:10:54.320 --> 0:10:57.240 do to the governor other than kidnapper, such as that 0:10:57.320 --> 0:11:00.120 they would cut all the trees down between Indiana in 0:11:00.200 --> 0:11:04.200 Michigan to prevent law enforcement from getting there fast enough. Well, 0:11:04.200 --> 0:11:07.520 it's really fanciful. They also talked about tying a balloon 0:11:07.559 --> 0:11:10.480 to the governor and toting her away. No one really 0:11:10.480 --> 0:11:13.760 believes that that could happen. So the defense theory was, 0:11:14.160 --> 0:11:16.880 if they're going to make up those type of theories 0:11:16.920 --> 0:11:20.960 that are really impossible, kidnapping the governor is just another 0:11:21.000 --> 0:11:23.480 one of those theories and it shouldn't be believed, and 0:11:23.920 --> 0:11:26.160 that was part of the arguments made in this case. 0:11:26.520 --> 0:11:29.880 I guess this does show that the jury really considered 0:11:30.000 --> 0:11:35.240 each of the defendants individually. They certainly did, and if 0:11:35.280 --> 0:11:37.800 they hadn't, this would have been a quick verdict. But 0:11:37.920 --> 0:11:41.000 they came back over several days. They took a lot 0:11:41.040 --> 0:11:44.240 of time, They asked questions that were very specific to 0:11:44.840 --> 0:11:48.680 the defendant's charged with the weapons, for example, and it 0:11:48.720 --> 0:11:51.160 looks like they did deliberate and take a lot of time. 0:11:51.240 --> 0:11:54.000 Of course, you know, when the jury came back and 0:11:54.040 --> 0:11:57.360 they couldn't reach a verdict, the expressions on their faces 0:11:57.520 --> 0:12:00.760 was certainly one of frustration. And if you have to 0:12:00.760 --> 0:12:03.679 sit inside a room with twelve people that you don't 0:12:03.720 --> 0:12:07.199 know for five days straight and you're disagreeing with them, 0:12:07.280 --> 0:12:12.480 it has to be very frustrating, definitely. So how big 0:12:12.520 --> 0:12:16.640 a blow would you say this is to the Justice Department, 0:12:17.120 --> 0:12:21.400 which has made domestic terror of priority after January six? 0:12:22.000 --> 0:12:25.199 It certainly is not helpful, right. The Justice Department definitely 0:12:25.200 --> 0:12:28.360 wanted to have convictions here. They were touting the security 0:12:28.360 --> 0:12:31.120 and strength of their evidence. It didn't work out for them. 0:12:31.480 --> 0:12:33.600 One thing that you should think about as well, is 0:12:33.880 --> 0:12:36.000 it's not just what they said about the evidence, but 0:12:36.040 --> 0:12:38.920 when the evidence was played in court it came out 0:12:38.960 --> 0:12:41.560 a little bit differently. For example, some of these threats 0:12:41.600 --> 0:12:44.480 towards Governor Whimer. You know, when they actually played the 0:12:44.480 --> 0:12:47.560 tape of the recording, the defendants were laughing. We don't 0:12:47.640 --> 0:12:51.360 laugh if you're serious about that, and so there was 0:12:51.440 --> 0:12:54.720 some reason to believe that there was some joking going 0:12:54.760 --> 0:12:57.400 on about this. Of course, there were other times when 0:12:57.720 --> 0:13:00.800 very sinister things were said about hurting the governor and 0:13:00.880 --> 0:13:04.439 no one was laughing at all. So on both sides, 0:13:04.559 --> 0:13:07.880 each side had some arguments there is there anything the 0:13:07.960 --> 0:13:11.239 government can do on the retrial to make the witnesses 0:13:11.400 --> 0:13:15.840 the informants more believable, But they can't go back and 0:13:15.920 --> 0:13:18.720 change the evidence. Then what's done is done is because 0:13:19.200 --> 0:13:21.760 this case was taken down at this particular time, with 0:13:21.840 --> 0:13:25.080 these particular defendants involved, and so that can't be changed. 0:13:25.480 --> 0:13:29.480 They can, however, have different questions or additional questions asked 0:13:29.480 --> 0:13:32.880 for potential jurors. Some of the jurors in this trial 0:13:33.040 --> 0:13:35.560 were asked very very little. In fact, one of the 0:13:35.640 --> 0:13:37.880 last people into the jury box, I think he was 0:13:37.920 --> 0:13:40.480 asked two questions. And once I heard that, and I 0:13:40.520 --> 0:13:43.160 was listening to the testimony, I thought, who the heck 0:13:43.240 --> 0:13:45.600 is this guy? We don't even really know who this 0:13:45.679 --> 0:13:48.240 person is, and now he's on the jury. I don't 0:13:48.240 --> 0:13:50.840 know if he favors the government or he favors the defense. 0:13:51.400 --> 0:13:54.200 If you were a trial lawyer, you would step up 0:13:54.240 --> 0:13:56.600 and say, hold on a second year, honor. I've got 0:13:56.600 --> 0:13:59.600 a few more questions, and I think we will probably 0:13:59.640 --> 0:14:03.160 see the at on both sides in the future. Does 0:14:03.200 --> 0:14:08.600 this showcase the difficulties the government has with infiltrating right 0:14:08.640 --> 0:14:14.200 wing groups and developing cases without infringing on First and 0:14:14.320 --> 0:14:18.560 Second Amendment rights? It certainly does. And this is a 0:14:18.640 --> 0:14:21.000 real fine line because it's not the first time that 0:14:21.080 --> 0:14:23.200 the government has brought a case that is similar to this, 0:14:23.560 --> 0:14:27.400 where it's churched people with government extremism and they've found 0:14:27.400 --> 0:14:30.280 acquittals at the end of the road. So yes, it's 0:14:30.320 --> 0:14:33.160 certainly something that the government has to take into account 0:14:33.400 --> 0:14:36.280 that people have the First Amendment, they have the Second Amendment, 0:14:36.480 --> 0:14:38.800 and in fact, this was covered in the trial. When 0:14:38.880 --> 0:14:42.280 you are making a bomb for fun, because some people 0:14:42.320 --> 0:14:45.400 do that, and you're you're just making explosives. That's not 0:14:45.480 --> 0:14:49.160 necessarily a weapon of mass destruction. But there was testimony 0:14:49.160 --> 0:14:51.280 about the fact that when you take a bomb or 0:14:51.320 --> 0:14:54.240 an explosive device and you put items in it like 0:14:54.320 --> 0:14:58.360 bbs or pennies are things that can fragment and injure people. 0:14:58.680 --> 0:15:01.120 That's a different type of weapon. So all of these 0:15:01.160 --> 0:15:03.600 things the government will be looking at in the future. 0:15:03.880 --> 0:15:06.880 And it is truly a balanced thing between knowing when 0:15:07.160 --> 0:15:11.280 you're prosecuting somebody who's done wrong and prosecuting somebody improperly 0:15:11.360 --> 0:15:15.680 because they've just exercised their First or Second Amendment rights. Matthew, 0:15:15.720 --> 0:15:18.560 hasn't been decided that they're going to retry them, or 0:15:18.600 --> 0:15:22.160 is there any question about it. It hasn't been formally decided, 0:15:22.200 --> 0:15:25.040 but nor What always happens after this is the judge 0:15:25.240 --> 0:15:28.760 enters a verdict of mistrial, and that hasn't yet happened 0:15:28.760 --> 0:15:30.760 on the dock at Chet, but the judge will do that, 0:15:31.080 --> 0:15:33.880 and then the judge will study scheduling date for when 0:15:33.960 --> 0:15:36.880 the next dates are. The current U S Attorney in 0:15:36.880 --> 0:15:40.160 the Western District indicated that we have more work to 0:15:40.200 --> 0:15:42.920 do and we've got another trial coming up, So he's 0:15:42.960 --> 0:15:46.280 telegraphed that, and I would think, given the Justice Department's 0:15:46.440 --> 0:15:50.320 past record on retrials, that there's really no reason that 0:15:50.400 --> 0:15:53.720 they wouldn't retrial this case. Again, given the fact that 0:15:53.800 --> 0:15:57.120 the jury returned to split verdict and opened the door 0:15:57.280 --> 0:16:00.320 for that to happen. What kind of message would it 0:16:00.360 --> 0:16:03.640 send out if the government didn't retry these two It 0:16:03.680 --> 0:16:05.720 would show that they're giving up on the case. And 0:16:06.040 --> 0:16:09.880 you know, some in the defense bar would say that's good. 0:16:10.080 --> 0:16:13.320 They're realizing the conclusion that the FBI and the government 0:16:13.360 --> 0:16:15.920 overreached and they should give up. And certainly that is 0:16:15.960 --> 0:16:19.000 an argument that has been put forth. But another argument 0:16:19.120 --> 0:16:22.560 is is that they have another ability to talk with 0:16:22.600 --> 0:16:26.160 the jurors now, this time only with two defendants, and 0:16:26.240 --> 0:16:28.840 that will be easier than with four defendants, will be 0:16:28.920 --> 0:16:32.120 less confusing, there'll be less evidence in the record. They'll 0:16:32.120 --> 0:16:34.840 be able to focus only on these two folks and 0:16:34.880 --> 0:16:38.000 then let the chips ball where they may. Thanks Matthew. 0:16:38.560 --> 0:16:41.560 That's Matthew Schneider, former U S Attorney for the Eastern 0:16:41.600 --> 0:16:47.200 District of Michigan and a partner at Honigman. President Biden 0:16:47.280 --> 0:16:51.000 is coming off the victory of Katangi Brown Jackson's confirmation 0:16:51.040 --> 0:16:54.200 to the Supreme Court, with a backlog of lower court 0:16:54.280 --> 0:16:58.480 vacancies that don't have appending nominee and the midterm elections 0:16:58.520 --> 0:17:03.080 ahead that could end the democrats narrow Senate majority. Joining 0:17:03.120 --> 0:17:07.520 me is Madison Alder Bloomberg Law reporter start by telling 0:17:07.600 --> 0:17:11.840 us how quickly Biden moved to fill judicial vacancies in 0:17:11.920 --> 0:17:15.879 his first year in office. In his first twelve months 0:17:15.920 --> 0:17:20.479 in office, Biden outpaced every president since John F. Kennedy 0:17:20.560 --> 0:17:24.480 with his appointment. He moved at a really record paced here, 0:17:24.920 --> 0:17:29.680 even outpacing Trump, who definitely made judicial nominations a priority. 0:17:29.880 --> 0:17:33.520 So Biden got off to a really good start in 0:17:33.600 --> 0:17:36.960 year one. In your two, he now had a Supreme 0:17:36.960 --> 0:17:39.400 Court va can see the fill and that took up 0:17:39.960 --> 0:17:42.600 a lot of time for the White House and for 0:17:42.720 --> 0:17:47.000 the Senate to deal with. So now Biden is looking 0:17:47.200 --> 0:17:51.240 at a lot of vacancies to fill this year, and 0:17:51.640 --> 0:17:54.080 that's made a little bit more difficult with mid terms 0:17:54.200 --> 0:17:58.159 right around the corner. Has Biden made any new lower 0:17:58.160 --> 0:18:04.120 court nominations since Justice Stephen Bryan announced his retirement. Yes, 0:18:04.280 --> 0:18:07.879 on February second, he made just one nomination to a 0:18:08.000 --> 0:18:12.160 circuit court, but really nominations have been to and far 0:18:12.240 --> 0:18:16.640 between during that process. So now Biden is looking at 0:18:17.000 --> 0:18:19.840 several vacancies at the circuit court level, about nine team 0:18:19.920 --> 0:18:24.320 that don't have a nomination pending, because he definitely has 0:18:24.320 --> 0:18:27.800 an opportunity to make an impact. They're looking towards the 0:18:27.880 --> 0:18:30.440 end of the year. Was it deliberate that he didn't 0:18:30.480 --> 0:18:34.800 make any new nominations or was it because of the 0:18:34.840 --> 0:18:38.240 whole process of having a Supreme Court nomination and shepherding 0:18:38.320 --> 0:18:42.119 that through. I think the Supreme Court nomination takes up 0:18:42.119 --> 0:18:45.080 a lot of oxygen in the room. But if Biden 0:18:45.119 --> 0:18:49.240 wants to make an impact on lower court nominations, new 0:18:49.359 --> 0:18:51.000 nominations are going to have to come from the White 0:18:51.000 --> 0:18:54.679 House here pretty soon. To give the Senate nomination to 0:18:55.040 --> 0:18:58.520 work on before mid terms kind of take over and 0:18:58.800 --> 0:19:01.399 take up a lot of senator's time when they're when 0:19:01.400 --> 0:19:04.760 they're at home campaigning. So let's talk about how many 0:19:04.760 --> 0:19:08.600 openings there are. There are three seats on the ninth 0:19:08.680 --> 0:19:11.919 and first circuit, this is without a nominee, two seats 0:19:11.960 --> 0:19:14.840 on the first, second, fourth, fifth, and seventh, and one 0:19:14.960 --> 0:19:18.440 seat on the third, sixth, tenth, and d C circuit. 0:19:19.240 --> 0:19:22.560 That's a lot of seats. Is that just waiting for 0:19:22.640 --> 0:19:26.520 the three months for Jackson's nomination to come through or 0:19:26.960 --> 0:19:29.920 did they slow down before that? So these have been 0:19:29.920 --> 0:19:35.159 building up, Definitely, These didn't just occurred during Jackson's nomination 0:19:35.280 --> 0:19:39.240 and far announcement that he would retire UM. But it 0:19:39.400 --> 0:19:42.440 is building up now and some of these have built 0:19:42.480 --> 0:19:45.919 up during that time period. So now this is this 0:19:46.000 --> 0:19:47.520 is what the White House is really going to be 0:19:47.600 --> 0:19:51.040 looking to towards the end of this year. Tell us 0:19:51.040 --> 0:19:56.040 about the most high profile vacancy is Jackson's seat on 0:19:56.040 --> 0:19:59.960 the d C circuit and there's already one nominee in play. 0:20:00.000 --> 0:20:03.120 He set there. Tell us about that nominee first. So 0:20:03.200 --> 0:20:06.800 the nominee in place there already is Michelle Child. She 0:20:06.960 --> 0:20:10.280 is a South Carolina's District judge Seddle judge UM in 0:20:10.320 --> 0:20:14.000 South Carolina, and she was being considered, if you remember, 0:20:14.000 --> 0:20:17.880 as a candidate for the Supreme Court. Uh, they paused 0:20:17.960 --> 0:20:20.719 her nomination process. She was actually going to have a hearing. 0:20:20.800 --> 0:20:24.800 The Judiciary Committee had planned to have her have a hearing, 0:20:25.359 --> 0:20:29.360 and when she was under consideration, so the seat, they 0:20:29.400 --> 0:20:33.400 paused that. So her nomination will be one of the 0:20:33.440 --> 0:20:37.000 circuit nominations the Judiciary Committee can address when it comes 0:20:37.000 --> 0:20:41.040 back after after recess. But then Biden also has another 0:20:41.080 --> 0:20:43.880 opportunity on on the DC Circuit, and that's Cantanti Brown 0:20:43.960 --> 0:20:48.159 Jackson's seat on the DC Circuit. Her elevation opens up 0:20:48.160 --> 0:20:52.200 another vacancy and he now has two seats he can 0:20:52.320 --> 0:20:54.679 he can fill on on that court, which is often 0:20:54.800 --> 0:20:58.480 seen as the second highest because it involves a lot 0:20:58.520 --> 0:21:02.560 of disputes in Balti agencies in Congress, and it's a 0:21:02.720 --> 0:21:05.720 it's a theme, is a very important court. Some groups 0:21:05.720 --> 0:21:09.840 are already posturing and making suggestions about what they want 0:21:09.880 --> 0:21:12.560 to see on that court. Right We just had a 0:21:12.600 --> 0:21:16.040 process where we were considering someone for that seat, and 0:21:16.400 --> 0:21:19.919 a lot of groups were making suggestions before Child was 0:21:19.960 --> 0:21:23.080 nominated about who they would like to see in in 0:21:23.080 --> 0:21:25.919 that kind of a role. I reported in September that 0:21:26.040 --> 0:21:31.040 Depect Cuta, who is the founder of boutique Appellent firm Um, 0:21:31.080 --> 0:21:34.720 and Karla Gilbride, who's a senior attorney at Public Justice, 0:21:34.840 --> 0:21:39.120 were both thought to be under consideration for that vacancy. Ultimately, 0:21:39.200 --> 0:21:42.440 Child was nominated, but given that they just considered nominated 0:21:42.480 --> 0:21:44.720 to the seat if there was anybody that was considered 0:21:44.880 --> 0:21:47.280 for that seat, that might be someone that they think 0:21:47.320 --> 0:21:51.040 about for this time around as well. I spoke to 0:21:51.160 --> 0:21:53.960 a couple of progressive groups, and you know, they would 0:21:53.960 --> 0:21:57.720 really like to see someone who maybe brings a different 0:21:57.720 --> 0:22:00.679 type of diversity to the Court than Child. The Child 0:22:01.160 --> 0:22:05.600 was criticized by progressives during that process of considering her 0:22:05.680 --> 0:22:10.040 for the Supreme Court for her representation of employers, and 0:22:10.160 --> 0:22:12.240 some of these progressive groups would like to see someone 0:22:12.280 --> 0:22:15.760 maybe with a pellet practice or a working administrative law 0:22:15.840 --> 0:22:20.000 work representing consumer interests. So those are some areas that 0:22:20.200 --> 0:22:24.200 are being talked about. Is a potential background, characteristics or 0:22:24.359 --> 0:22:28.119 experience for Biden's pick medicine who is doing the selecting 0:22:28.720 --> 0:22:33.280 of these nominees. So the DC circuit is unique in 0:22:33.320 --> 0:22:36.920 the fact that there's no senators that are attached to DC, 0:22:37.080 --> 0:22:41.040 so the White House doesn't have to deal with senators 0:22:41.080 --> 0:22:44.159 interest now at the circuit level, that hasn't been the 0:22:44.200 --> 0:22:49.240 practice for several years now. During the Trump administration, Republicans 0:22:49.240 --> 0:22:52.680 in the Senate stopped treating home state senators support as 0:22:52.720 --> 0:22:55.560 a veto on nominees, so that hasn't been the case 0:22:55.560 --> 0:22:58.199 at the circuit level for a few years now, but 0:22:58.400 --> 0:23:01.719 the DC Circuit has always been that way, and you know, 0:23:01.720 --> 0:23:03.640 even if the White House are reaching out to courtesy, 0:23:03.800 --> 0:23:06.280