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

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Speaker 1: Chief Justice John Roberts is allowing President Trump to remove

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Speaker 1: a member of the Federal Trade Commission, the latest in

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Speaker 1: a string of high profile firings allowed by the Supreme

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Speaker 1: Court for now. Rebecca Kelly Slaughter, the FTC's only Democrat,

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Speaker 1: had briefly returned to her job after a federal appeals

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Speaker 1: court ruling in her favor last week. Roberts order, which

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Speaker 1: came with no explanation, nullifies that decision at least until

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Speaker 1: the full Supreme Court decides how to handle the case.

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Speaker 1: He set a September fifteenth deadline for Slaughter's lawyers to

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Speaker 1: respond to the Justice Department's request to keep the Commission

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Speaker 1: out of her job while the legal fight over the

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Speaker 1: merits plays out. My guest is constitutional law professor Harold

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Speaker 1: Krentt of the Chicago Kent College of Law. The FTC

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Speaker 1: Act says a president can remove commissioners only for cause

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Speaker 1: such as inefficiency or neglect of duty. There was no

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Speaker 1: cause here, So why did the Chief Justice allow Trump

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Speaker 1: to remove Slaughter for now?

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Speaker 2: Well, there's two possibilities, and the first is that despite

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Speaker 2: the fact that the Supreme Court is upheld the validity

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Speaker 2: of the president in the FTC case Colfrey's Executive which

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Speaker 2: was decided almost a century ago. The Court has been

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Speaker 2: chipping away at it, and this might signal that the

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Speaker 2: time for chipping away at it may be over and

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Speaker 2: the Court is now ready squarely to face it and

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Speaker 2: overrule it. That's theory one. Theory two is that in

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Speaker 2: all of these removal cases we've never seen a court

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Speaker 2: order reinstatement. An obviously, reinstatement intrudes more dramatically into the

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Speaker 2: president's authority than just in order to pay back pay,

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Speaker 2: as in the Humphis Executive President itself. So the second

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Speaker 2: possibility is the court thinks that, even if they will

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Speaker 2: continue to abide by the Humphreys Executive President, that it's

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Speaker 2: just too much to order reinstatement, and that, of course, then, however,

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Speaker 2: would allow the president to appoint somebody else, another Democrat,

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Speaker 2: And you know, in that sense there would be no

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Speaker 2: real change in terms of the balance of the political parties.

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Speaker 1: He would have to appoint someone who is a Democrat.

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Speaker 3: Yeah.

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Speaker 2: Under the terms of the Act, there's supposed to be

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Speaker 2: five members of the FTC and no more than three

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Speaker 2: of whom can be of any one political party.

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Speaker 1: So this is a temporary order by the Chief Justice.

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Speaker 1: So will you explain what happens next, because it's the

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Speaker 1: Chief Justice who handles all the emergency appeals from.

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Speaker 2: DC correct and so it's a matter of will the

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Speaker 2: government want to keep the litigation going? Presumably it will,

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Speaker 2: and so this stay would then attach as long as

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Speaker 2: the Executive branch hues to its deadlines in terms of

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Speaker 2: then filing for registerchiari, giving time for the Court to

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Speaker 2: then decide the case. And alternatively, the Court could go

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Speaker 2: for rehearing on bank and that would take some time

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Speaker 2: as well. So depending on what the Executive Branch does,

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Speaker 2: this won't get resolved anytime soon, but it could get

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Speaker 2: this resolved of the Supreme Court.

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Speaker 4: Term is the.

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Speaker 1: Chief Justice saying this is an emergency.

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Speaker 2: No, it's an emergency state. There's in the so called

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Speaker 2: shadow docket. And what the Court has been doing more

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Speaker 2: and more is it taking a look at the equities

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Speaker 2: to determine whether there should be interim relief imposed pending

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Speaker 2: you know, exhaustion of appeals, pending a full resolution on

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Speaker 2: the merits. So it's looking at simply the question of

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Speaker 2: a kind of likelihood of success on the merits as

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Speaker 2: well as balance of the equities. So it's a simil

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Speaker 2: to a traditional injunction standard, but it's done obviously in

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Speaker 2: a very informal way, and we don't have the benefit

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Speaker 2: of an opinion.

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Speaker 1: In May, when the Supreme Court allowed Trump to remove

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Speaker 1: members of the National Labor Relations Board and the Merit

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Speaker 1: Systems Protection Board, all the justices voted yeah.

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Speaker 2: So there is a termination that being made by the

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Speaker 2: Court whether to have signed opinions in the so called

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Speaker 2: interim relief or interim docket as opposed to just an

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Speaker 2: order of the Court. And so through some kind of

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Speaker 2: behind the scenes negotiations, they decide who wants to think

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Speaker 2: this is important enough to write an opinion, who is

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Speaker 2: his content with just having an administrative order. So there is

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Speaker 2: no firmly entrenched tradition as to whether any kind of

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Speaker 2: written order will ensue. And the same thing is even

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Speaker 2: true for denials of scerai. Sometimes some of the justices

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Speaker 2: want to stay their own opinion about why the Court

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Speaker 2: should have been sir sure. So there's still discretion left

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Speaker 2: in these sort of nonmerist decisions as to who will

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Speaker 2: write an opinion, And why is.

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Speaker 1: This decision by the Chief Justice any more consequential than

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Speaker 1: the Court letting Trump remove members of the NLRB and

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Speaker 1: the Merit Systems Protection Board.

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Speaker 2: It may be slightly more consequential merely because this is

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Speaker 2: the Federal Trade Commission, the very same commission that was

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Speaker 2: involved in the Humphrey's Executive President some ninety years ago.

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Speaker 2: But you know, to me, I'm not surprised. I don't

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Speaker 2: think court observers were surprised, because like either two reasons

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Speaker 2: that to animate the Chief Justice's action and the Conservative

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Speaker 2: Court obviously, one is that they do want to determine

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Speaker 2: whether or not to get rid of Humpy's executor once

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Speaker 2: in fall, because there's not much left. And then secondly,

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Speaker 2: I think it is a question that's been unanswered in

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Speaker 2: terms of the balancing of the equities. Should a court

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Speaker 2: inequity as nequltable remedy order the President to take somebody

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Speaker 2: back who doesn't want Would you.

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Speaker 1: Say there's a zero percent chance that Humphrey's Executor is

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Speaker 1: going to last through this upcoming Supreme Court term, or

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Speaker 1: are the odds better than that?

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Speaker 2: I would think negligible is probably the right way to

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Speaker 2: frame it. Certainly, I think the odds will be strong

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Speaker 2: backing the fact that Humphrey's executor will be overturned. But

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Speaker 2: there might be some way of keeping Humphrey's executor even

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Speaker 2: in ruling against FTC Commissioner or Slaughter, because of the

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Speaker 2: fact that the FTC really is a different animal than

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Speaker 2: it was in nineteen thirty five. It has vast vastly

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Speaker 2: more power, vastly more personnel, and so the court could

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Speaker 2: try to limit the older case to a different kind

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Speaker 2: of agency which almost doesn't exist anymore.

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Speaker 1: The FTC is different, the Federal Reserve Board is certainly different,

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Speaker 1: and right now Trump is trying to push out Federal

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Speaker 1: Reserve Governor Lisa Cook. Does this decision indicate anything about that?

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Speaker 2: Well, the Court in the prior case that you alluded to,

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Speaker 2: suggested that there's something different about the FED. Politically, of course,

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Speaker 2: there's something different about the FED. Whether it's different from

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Speaker 2: a constitutional perspective, it is harder to understand. But the

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Speaker 2: court there wanted to have some kind of groundwork to

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Speaker 2: suggest that maybe they would rule differently in the case

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Speaker 2: of the Fed than they would even with respect to

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Speaker 2: the FTC. So I do think that there is some

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Speaker 2: chance for differentiation.

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Speaker 1: I mean, do you think that the mortgage fraud allegations

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Speaker 1: of something that happened before she was a FED governor,

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Speaker 1: do you think that those are sufficient if there is

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Speaker 1: a four cause removal.

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Speaker 2: We don't have a lot of cases on this. I

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Speaker 2: do think that there's some president that would suggest that

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Speaker 2: some kind of former, some kind of strong evidence or

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Speaker 2: plausible evidence of fraud is inconsistent with such a responsibility

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Speaker 2: of honor and respect in the US government. But we

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Speaker 2: don't have a lot of judicial precedent on what cause means.

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Speaker 2: But I guess I'm a little more sympathetic with the

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Speaker 2: government than some editorials that I've seen, because you know,

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Speaker 2: I think that you wouldn't want to have a officer

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Speaker 2: of the United States if it could be if it's shown,

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Speaker 2: which it has to be in this case, but if

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Speaker 2: there was a showing that there was, you know, some

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Speaker 2: kind of moral qualms about the individual exercises in a

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Speaker 2: position of trust and trustworthiness.

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Speaker 1: But in any event, in any case that will end

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Speaker 1: up at the Supreme.

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Speaker 2: Court, I think the Supreme Court is going to be busy,

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Speaker 2: and I hope that they have no desire to take

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Speaker 2: a lot of vacations because the case they're just piling up,

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Speaker 2: and even the Court knows they're important and they're going

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Speaker 2: to take time.

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Speaker 1: In all these removal cases. It's it's been the sixth

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Speaker 1: conservative Republican appointees versus the three liberal Democratic appointees. What

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Speaker 1: happens when a Democratic president comes in and wants to

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Speaker 1: fire people on these independent boards? Is the Supreme Court

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Speaker 1: going to reverse itself?

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Speaker 2: I don't think the Supreme Court would be that brazen.

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Speaker 2: I think that the Supreme Court might, at the corners

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Speaker 2: interpret things a little differently depending upon who's in president.

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Speaker 2: They certainly would take different cases depending upon who's present.

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Speaker 2: They would operate their sort of interim or shadow docket differently.

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Speaker 2: But I don't think that they would overrule cases which

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Speaker 2: they decided during the Trump term just because they favored

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Speaker 2: a democratics disfessor.

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Speaker 1: Thanks so much, Hal. That's Professor Harrold Krent of the

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Speaker 1: Chicago Kent College of Law. You've probably heard the much

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Speaker 1: repeated saying that prosecutors have so much influence on grand

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Speaker 1: juries they can get them to indict Sandwich. Well maybe

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Speaker 1: not if that prosecutor is a DC federal prosecutor. Trying

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Speaker 1: to get a grand jury to indict someone overthrowing a

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Speaker 1: salami sandwich, a rap salami sandwich at that. Janine Piro,

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Speaker 1: the US attorney for DC, bragged about charging the man

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Speaker 1: who threw a subway sandwich at an ice officer with

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Speaker 1: a felony of assaulting a federal law enforcement officer.

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Speaker 4: And then he took a subway sandwich about this big

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Speaker 4: and took it and threw it at the officer. He

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Speaker 4: thought it was funny. Well, he doesn't think it's funny

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Speaker 4: today because we charged it with a felony assault on

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Speaker 4: a police officer and we're going to back the police

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Speaker 4: to the hilt. So there, stick your subway sandwich somewhere else.

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Speaker 1: Well, apparently the grand jury didn't get Piero's joke, and

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Speaker 1: the DCUs Attorney's office didn't get their felony indictment against

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Speaker 1: Sean Charles done. They've now charged him with a misdemeanor

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Speaker 1: of simple assault, which doesn't require a grand jury indictment.

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Speaker 1: That reduced the possible sentence from eight years down to one.

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Speaker 1: It's extraordinarily rare for a grand jury to refuse to

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Speaker 1: return an indictment, but the same scenario has played out

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Speaker 1: at least seven times in five cases since Trump ordered

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Speaker 1: a surge in patrols by federal agents and troops in DC.

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Speaker 1: According to the Associated Press, joining me is former federal

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Speaker 1: prosecutor Robert Mintz, a partner mat Carter. In English, Bob,

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Speaker 1: people know the basics of the workings of a jury

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Speaker 1: even if they haven't been on one, because it's depicted

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Speaker 1: so much in the movies and on TV, but less

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Speaker 1: so about the workings of a grand jury. So tell

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Speaker 1: us about the grand jury.

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Speaker 5: A grand jury proceeding is necessary when ever, prosecutors are

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Speaker 5: seeking to bring a felony charge. Under the Fifth Amendment,

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Speaker 5: there is a requirement for capital or otherwise infamous crime

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Speaker 5: to go before a grand jury, which in the federal

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Speaker 5: system is between sixteen and twenty two citizens, in order

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Speaker 5: to establish probable cause to bring the charge. What that

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Speaker 5: means is prosecutors have to essentially present their case to

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Speaker 5: the grand jurors in order to bring the indictment, and

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Speaker 5: what goes on in the grand jury is entirely controlled

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Speaker 5: by prosecutors. It's a presentation in which only the prosecutor

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Speaker 5: is present. The defense lawyer is not allowed inside the

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Speaker 5: grand jury. The defendant does not get a right to

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Speaker 5: testify before the grand jury. It's really the prosecutor asking

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Speaker 5: questions of witnesses, who may summarize interviews and other evidence

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Speaker 5: that they've gathered and allow for far stake to be

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Speaker 5: presented to the grand jury to establish whether or not

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Speaker 5: there is probable cost to bring that charge. Now bear

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Speaker 5: in mind that probable cause a very low bar. It

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Speaker 5: only means that there is a reason to proceed with

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Speaker 5: the case and that the prosecutor is able to get

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Speaker 5: an indictment, and then that case will go to trial.

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Speaker 5: But prosecutors can only bring a case that they believe

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Speaker 5: that a reasonable jury can convict down the road on

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Speaker 5: the standard of trial is beyond a reasonable doubt. So

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Speaker 5: getting an indictment in front of a grand jury is

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Speaker 5: usually a very easy task for prosecutors, and it is

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Speaker 5: exceedingly rare for prosecutors to present a case to a

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Speaker 5: grand jury and not have the grand jury return an indictment.

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Speaker 1: Has that ever happened to you?

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Speaker 5: I was a prosecutor for ten years and I never

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Speaker 5: had a single instance in which the grand jury refused

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Speaker 5: to indict. And while I was in the office, I

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Speaker 5: think it only happened about one time, so it is

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Speaker 5: very very rare, and it's rare for a couple of reasons.

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Speaker 5: Number One, prosecutors only bring cases where they believe there

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Speaker 5: is strong evidence, because again, the case has to go

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Speaker 5: bed on the charging stage. Prosecutors have to believe that

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Speaker 5: they can ultimately convince a jury of proof beyond a

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Speaker 5: reasonable doubt, which is the highest standard we have in

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Speaker 5: our legal system. And so in order to be able

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Speaker 5: to satisfy that standard, there certainly has to at least

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Speaker 5: be probable cause, which is the very lowest standard we

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Speaker 5: have in order to bring the charges. The other reason

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Speaker 5: is that prosecutors are very selective in which cases they bring,

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Speaker 5: and they tend to bring cases in which there is

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Speaker 5: overwhelming evidence. Then they believe that they'll be able to

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Speaker 5: gain that conviction that trial. Otherwise, prosecutors can decline to

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Speaker 5: bring the case, or they can bring different charges that

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Speaker 5: would be easier for them to prove at a trial.

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Speaker 1: And whereas at trial in a criminal case the jurors

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Speaker 1: have to be unanimous in a grand jury, they don't

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Speaker 1: have to be unanimous, right.

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Speaker 5: No, that's exactly right. A criminal trial does have to

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Speaker 5: be a unanimous verdict. In order to get what's called

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Speaker 5: a true bill, or have grand jurors return in indictment,

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Speaker 5: you only need twelve of those grandeurs to vote in

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Speaker 5: favor of the indictment.

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Speaker 1: So there have reportedly been seven times in the last

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Speaker 1: few weeks where the grand jury in DC has refused

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Speaker 1: to return an indictment. So the US Attorney's team tried

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Speaker 1: to secure an indictment against one woman for felony assault

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Speaker 1: against a federal agent, but three separate grand juries refuse

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Speaker 1: to return an indictment against her. She was eventually charged

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Speaker 1: with assaulting, resisting or impeding officers.

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Speaker 5: It's very unusual. In order to sustain a charge of

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Speaker 5: assaulting a federal officer, prosecutors have to show that the

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Speaker 5: federal officer faced a fear of death or serious bodily injury,

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Speaker 5: and it does carry a penalty of up to eight

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Speaker 5: years in prison.

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Speaker 2: So it's very.

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Speaker 5: Unusual for grand jurys to be faced with a potential

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Speaker 5: charge of assaulting a federal officer and not return an indictments.

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Speaker 5: There really are two possible reasons why that happened, And again,

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Speaker 5: what goes on in a grand jury is entirely secret,

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Speaker 5: so we don't really know what their reasons are. And

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Speaker 5: when a grand jury decides not to return a true

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Speaker 5: bill or not to return an indictment, they don't have

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Speaker 5: to give any reasons and don't give any reasons. It's

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Speaker 5: simply a vote that either is twelve in favor of

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Speaker 5: indictment or not twelve in favor of indictment. So at

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Speaker 5: the end of the day, we don't really know the

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Speaker 5: grand jury's reasoning, but we can surmise that it's really

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Speaker 5: one of two things. Either prosecutors hadn't made out their

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Speaker 5: case for probable cause, which is a very low standards.

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Speaker 5: It only means that it allows a case to move

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Speaker 5: forward to trial that there is evidence that a crime

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Speaker 5: has been committed and that the individual who prosecutors are

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Speaker 5: seeking to charge have committed that crime. Or the other

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Speaker 5: reason is something called jury nullification, which really happens at

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Speaker 5: trials more than it happens in front of grand jury's

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Speaker 5: And what happens there is that sometimes jurors will hear

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Speaker 5: a case and jurors may actually believe that the prosecution

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Speaker 5: has met its burden of proof, but for other reasons

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Speaker 5: decide that they are not going to vote for a conviction.

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Speaker 5: That's something called jury nullification, and it generally happens when

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Speaker 5: there's some feeling among jurors that there's been some overreaching

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Speaker 5: by prosecutors or some improper conduct by prosecutors. Once again,

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Speaker 5: the jury system, just like the grand jury system, is

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Speaker 5: entirely secret on prosecutors. As a general rule, never find

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Speaker 5: out why jurors vote a particular way unless there is

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Speaker 5: some alaked impropriety in the jury process. But otherwise there's

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Speaker 5: no way of knowing why jurors vote a particular way.

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Speaker 5: All they will know is, at the end of the day,

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Speaker 5: the jurors did not vote in favor of conviction. And

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Speaker 5: sometimes it happens because jurors simply believe that there's something

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Speaker 5: improper about the charge, about the nature the prosecution, about

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Speaker 5: the way prosecutors handle the case, and so even though

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Speaker 5: prosecutors may have met the burden of proof, the jury

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Speaker 5: may decide not to convict. It really is kind of

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Speaker 5: an act of civil disobedience by juries, and it very

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Speaker 5: rarely happens, but it does happen. On occasion.

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Speaker 1: You heard Pierro saying we're going to back our police

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Speaker 1: to the hilt, and a lot of these cases that

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Speaker 1: we've been talking about involve assaults of some kind on

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Speaker 1: law enforcement. For example, the guy who threw the subway

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Speaker 1: sandwich at the federal officer, and there was another case

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Speaker 1: where a guy was accused of swinging his arms at

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Speaker 1: a park police officer. So is this likely the grand

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Speaker 1: jury's saying they're overcharging these cases?

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Speaker 5: Well, we don't really know why grand juries are refusing

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Speaker 5: to return indictments here, but I think it's a fair

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Speaker 5: assumption that the grand jurors are looking at these charges

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Speaker 5: and deciding that either there is no probable cause, which

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Speaker 5: seems unlikely. The more likely conclusion I think we can

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Speaker 5: reach here is that the grandeurs are deciding that prosecutors

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Speaker 5: are overcharging, that they're looking at the body camera evidence

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Speaker 5: so they can see exactly what went on here, and

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Speaker 5: asking themselves, while that may have been improper, while the

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Speaker 5: defendant may have touched a federal officer, while they may

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Speaker 5: have acted improperly, did they really assault them? Were they're

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Speaker 5: really intending death or serious bodily harm? And it may

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Speaker 5: well be that grandeurs are putting themselves in the shoes

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Speaker 5: of the defendant and saying, what would I do in

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Speaker 5: that circumstance where maybe I was very upset, where maybe

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Speaker 5: the defendant is placed in a situation where they felt

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Speaker 5: that what was going on by the National Guard or

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Speaker 5: by federal officers was somehow went proper. And again, touching

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Speaker 5: of a federal officer or any way impeding what's going

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Speaker 5: on in terms of federal officers trying to conduct their

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Speaker 5: business is improper. But the question is doesn't amount to

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Speaker 5: assaulting a federal officer or is really some lesser charge

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Speaker 5: more appropriate. I think what we can conclude here is

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Speaker 5: that in those instances, grand jurors believe that prosecutors were

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Speaker 5: overcharging those cases and that while the conduct may have

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Speaker 5: been inappropriate, it didn't rise to the level of assaulting

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Speaker 5: a federal officer.

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Speaker 1: Is a grand jury considered sort of a safeguard against

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Speaker 1: prosecutorial overreach.

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Speaker 5: The concept of an indictment is enshrined in the Fifth Amendments,

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Speaker 5: So even going back to the founding of this country,

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Speaker 5: there was always a concern about the government being able

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Speaker 5: to bring charges on its own, and that's why we

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Speaker 5: have this concept of the grand jury, where they hear

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Speaker 5: evidence and prosecutors have to convince those grand jurors who

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Speaker 5: are just like any other jurors out there. They are

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Speaker 5: randomly selected and then they are questioned, and then they're

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Speaker 5: made a part of this grand jury, and all they

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Speaker 5: do is hear evidence for possible charges, and it goes

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Speaker 5: on for about a year and a half while they

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Speaker 5: sit and hear these cases once a week. But they

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Speaker 5: are put in place pursue it to the intent of

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Speaker 5: the framers of the Constitution to act at the buffer

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Speaker 5: between the government and decisions to charge citizens. And that's

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Speaker 5: why in every case in which a federal felony is charged,

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Speaker 5: and that means if the defendant is facing possible imprisonment

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Speaker 5: of more than a year, that's what constitutes a felony

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Speaker 5: that has to go before a grand jury, and a

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Speaker 5: grand jury has to agree that that case should proceed

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Speaker 5: to trial.

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Speaker 1: And in most of these cases it seem that what

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Speaker 1: happened is they drop the charges to misdemeanors. What do

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Speaker 1: prosecutores have to do to charge a misdemeanor.

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Speaker 5: A misdemeanor does not require an indictment. Therefore, it does

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Speaker 5: not have to go before a grand jury because the

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Speaker 5: penalty for misdemeanor is up to one year in prison,

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Speaker 5: and it does not meet that definition of an infamous

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Speaker 5: crime as is stated in the Fifth Amendment, So prosecutors

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Speaker 5: can bring those charges directly, but you still ultimately have

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Speaker 5: to go in front of a jury and get a conviction.

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Speaker 2: Here, so it does.

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Speaker 5: Allow prosecutors to skip the indictment phase. They can bring

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Speaker 5: those charges directly, but they still have to go before

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Speaker 5: a regular jury in order to get a conviction.

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Speaker 1: And also a federal magistrate has criticized the DCUs attorney

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Speaker 1: saying that people are being held in jail while the

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Speaker 1: US attorney is trying to get these indictments from a

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Speaker 1: grand jury.

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Speaker 5: Again, this is really very unprecedented because usually indictments are

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Speaker 5: given very freely. There's the famous quote from Judge Paul Walkler,

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Speaker 5: who was a judged in New York State for many years. Instead,

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Speaker 5: the prosecutors have six complete control of a grand jury

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Speaker 5: that they could get them to indict a ham sandwich.

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Speaker 5: And that really is pretty much the case because of

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Speaker 5: the way prosecutors control that whole proceeding. So it's very

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Speaker 5: unusual for prosecutors to have to go in front of

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Speaker 5: a grand jury multiple times in order to try to

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Speaker 5: get an indictment, and all the while that's happening. The

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Speaker 5: defendant is remaining in jail. What is also extremely unusual

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Speaker 5: is for the US Attorney in Washington, d C. To

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Speaker 5: name Piro to get into stick a public dispute with

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Speaker 5: a sitting magistrate judge where she is calling him out

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Speaker 5: by name, and the magistrate judge is so openly critical

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Speaker 5: of the US Attorney's office, a place where he formally

399
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Speaker 5: worked as an assistant US attorney. We rarely see that

400
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Speaker 5: kind of public display between prosecutors and judges. Generally, there

401
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Speaker 5: is a level of trust that judges have in the

402
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Speaker 5: federal government, and particularly with regard to the US Attorney's offices.

403
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Speaker 5: In my experience, having been a federal prosecutor for ten years,

404
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Speaker 5: judges did show a degree of deference to federal prosecutors

405
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Speaker 5: when they brought evidence to the judge in order to

406
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Speaker 5: obtain a search warrant, for example, in order to obtain

407
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Speaker 5: a wire tap. All of that is presented to the

408
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Speaker 5: judge x party, which means presented to the judge only

409
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Speaker 5: by prosecutors. There's no defense involved, and so to a

410
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Speaker 5: certain degree, judges have to take what prosecutors are presenting

411
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Speaker 5: to them at face value before they approve a search

412
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Speaker 5: warrant or before they approve the placement of a wire tap,

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Speaker 5: and they do that based upon years of having built

414
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Speaker 5: up a certain level of trust between prosecutors and judges,

415
00:24:40,800 --> 00:24:44,680
Speaker 5: in which judges have been able to rely on representations

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Speaker 5: that the US Attorney's Office has made about certain facts.

417
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Speaker 5: And when there comes a time where judges are no

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Speaker 5: longer trusting, it really does throw stand to the gears

419
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Speaker 5: of the justice system, because judges do have to a

420
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Speaker 5: certain extent rely on the good faith and the truth

421
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Speaker 5: of prosecutors when they make certain assertions in court, and

422
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Speaker 5: if that doesn't happen, it really slows the system down

423
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Speaker 5: and it makes it much more difficult not only for

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Speaker 5: defendants to get fair trials, but also for prosecutors to

425
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Speaker 5: move their cases forward. So it's going to be interesting

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Speaker 5: to see going forward where this tension between judges and

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Speaker 5: prosecutors continues to escalate, or whether it returns to a

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Speaker 5: state where there is a greater degree of trust between

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Speaker 5: prosecutors and the federal judiciary.

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Speaker 1: I mean, in this administration, we also have the US

431
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Speaker 1: Attorney General calling out judges by name, so it's not

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Speaker 1: restricted to the DC US Attorney and also just to

433
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Speaker 1: note that this is the same courthouse where hundreds of

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Speaker 1: Trump supporters were charged and often convicted by juries with

435
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Speaker 1: joining the mob's attack on the US capital on January

436
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Speaker 1: sixth of twenty twenty one. Comp used his clemency powers

437
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Speaker 1: to erase those cases.

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Speaker 5: One of the things I think we'll see from Defense

439
00:26:05,600 --> 00:26:10,000
Speaker 5: Council here is trying to raise the defense of selective prosecution,

440
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Speaker 5: and what that really means is arguing that a similarly

441
00:26:13,920 --> 00:26:18,840
Speaker 5: situated defendant was handled differently by the government, and they

442
00:26:18,880 --> 00:26:22,679
Speaker 5: may point to the January sixth rioters whose convictions were

443
00:26:22,760 --> 00:26:26,960
Speaker 5: ultimately dismissed and whose charges were ultimately dismissed and say

444
00:26:27,040 --> 00:26:30,359
Speaker 5: that that's really the same thing as the assault charges

445
00:26:30,359 --> 00:26:32,280
Speaker 5: that are brought here, to try to point out that

446
00:26:32,320 --> 00:26:35,879
Speaker 5: there's a selective enforcement going on here. Now, I think

447
00:26:36,119 --> 00:26:38,600
Speaker 5: that in the end of the day, that probably won't work,

448
00:26:38,680 --> 00:26:42,439
Speaker 5: because there are some material differences between January sixth and

449
00:26:42,600 --> 00:26:45,520
Speaker 5: these prosecutions that I think the government will be able

450
00:26:45,560 --> 00:26:49,080
Speaker 5: to raise. For example, I think we can expect prosecutors

451
00:26:49,160 --> 00:26:53,000
Speaker 5: now to argue that these assault charges are being brought

452
00:26:53,119 --> 00:26:57,200
Speaker 5: as part of an ongoing public safety emergency, whereas January

453
00:26:57,240 --> 00:27:01,439
Speaker 5: sixth was a single, one time event and the facts

454
00:27:01,560 --> 00:27:05,040
Speaker 5: are different than what we're seeing right now. But I

455
00:27:05,119 --> 00:27:09,040
Speaker 5: do think that that argument will be raised by the defense,

456
00:27:09,280 --> 00:27:11,600
Speaker 5: and it's possible that when these cases get in front

457
00:27:11,600 --> 00:27:14,240
Speaker 5: of a jury, that the defense will try to draw

458
00:27:14,280 --> 00:27:18,560
Speaker 5: a parallel between the January sixth riders and the individuals

459
00:27:18,840 --> 00:27:22,959
Speaker 5: charged with assaulting federal officers in these circumstances, and try

460
00:27:23,000 --> 00:27:27,040
Speaker 5: to play on juror's concept that there is some inequity

461
00:27:27,119 --> 00:27:30,960
Speaker 5: here or that the prosecution has overreached and even charging

462
00:27:30,960 --> 00:27:32,840
Speaker 5: these people with assault in the first place.

463
00:27:32,960 --> 00:27:35,240
Speaker 1: It'll be interesting to see if any of these cases

464
00:27:35,280 --> 00:27:38,639
Speaker 1: get pleaded out and don't even go to trial. Thanks

465
00:27:38,640 --> 00:27:43,640
Speaker 1: so much, Bob. That's Robert Mints of McCarter and English.

466
00:27:44,320 --> 00:27:48,320
Speaker 1: A US appeals court in Manhattan left intact the eighty

467
00:27:48,400 --> 00:27:53,040
Speaker 1: three point three million dollar penalty against President Donald Trump

468
00:27:53,160 --> 00:27:57,880
Speaker 1: in Egen Carroll's defamation lawsuit, rejecting his attempt to overturn

469
00:27:57,960 --> 00:28:01,520
Speaker 1: the jury's verdict. A unanimous toy today by the Second

470
00:28:01,600 --> 00:28:04,880
Speaker 1: Circuit Court of Appeals found the trial judge had handled

471
00:28:04,880 --> 00:28:09,280
Speaker 1: the case properly and that the damages were reasonable. Joining

472
00:28:09,280 --> 00:28:14,000
Speaker 1: me is Bloomberg Legal reporter Eric Larson Eric tell us

473
00:28:14,000 --> 00:28:17,119
Speaker 1: about this particular verdict and the trial.

474
00:28:17,800 --> 00:28:22,000
Speaker 3: So this decision was for a trial in eging. Carroll's

475
00:28:22,480 --> 00:28:26,919
Speaker 3: lawsuit focused solely on defamation. So when she made her

476
00:28:26,960 --> 00:28:30,520
Speaker 3: initial allegations about Trump in twenty nineteen, Trump of course

477
00:28:30,560 --> 00:28:34,280
Speaker 3: responded with remarks that she says defamed her. And so

478
00:28:34,400 --> 00:28:39,040
Speaker 3: that was the central element in this particular lawsuit. And

479
00:28:39,080 --> 00:28:41,160
Speaker 3: the reason it gets a little confusing sometimes is that

480
00:28:41,200 --> 00:28:44,560
Speaker 3: there was another lawsuit that she filed after that, under

481
00:28:44,640 --> 00:28:47,960
Speaker 3: a New York state law that just temporarily lifted the

482
00:28:47,960 --> 00:28:52,280
Speaker 3: statute of limitations for victims of sexual assault to file

483
00:28:52,400 --> 00:28:56,440
Speaker 3: civil lawsuits against their accused attackers. So she filed she

484
00:28:56,560 --> 00:28:59,040
Speaker 3: was actually the first person to file a lawsuit under

485
00:28:59,040 --> 00:29:02,320
Speaker 3: that law. Than was a totally separate trial that she

486
00:29:02,520 --> 00:29:05,720
Speaker 3: also won, and that resulted in a five million dollar

487
00:29:05,920 --> 00:29:10,000
Speaker 3: damage award in a sex abuse and defamation case. And

488
00:29:10,080 --> 00:29:13,560
Speaker 3: this one today is strictly about that earlier defamation lawsuit.

489
00:29:14,080 --> 00:29:19,280
Speaker 1: So trumpet argued that the damages were unreasonably excessive. What

490
00:29:19,440 --> 00:29:21,440
Speaker 1: did the second circuit find about that.

491
00:29:21,880 --> 00:29:24,720
Speaker 3: Well, they just flought out disagreed. They said that the

492
00:29:24,840 --> 00:29:27,920
Speaker 3: damages were reasonable. As they put it, quote in light

493
00:29:28,000 --> 00:29:31,400
Speaker 3: of the extraordinary and egregious facts of the case. So

494
00:29:31,800 --> 00:29:35,200
Speaker 3: they looked at the fact and made their own determination

495
00:29:35,320 --> 00:29:38,920
Speaker 3: about the seriousness of the conduct. I think we've seen

496
00:29:39,080 --> 00:29:43,000
Speaker 3: all along that the defamation was considered to be particularly

497
00:29:43,440 --> 00:29:47,000
Speaker 3: egregious because you know, it came from a then sitting

498
00:29:47,040 --> 00:29:50,440
Speaker 3: president of the United States making statements from the White

499
00:29:50,480 --> 00:29:54,600
Speaker 3: House to a large audience. So those were some of

500
00:29:54,600 --> 00:29:57,800
Speaker 3: the unique elements of the case that resulted in this

501
00:29:58,040 --> 00:30:01,880
Speaker 3: huge award, and worth noting that that eighty three point

502
00:30:01,880 --> 00:30:05,200
Speaker 3: three million, most of that is punitive damages. It was

503
00:30:05,400 --> 00:30:09,160
Speaker 3: a smaller portion that was just compensating miss Carroll for

504
00:30:09,280 --> 00:30:13,240
Speaker 3: the damage to her reputation. Most of that was calculated

505
00:30:13,240 --> 00:30:18,240
Speaker 3: by the jury specifically to punish Trump, to discourage and

506
00:30:18,320 --> 00:30:22,280
Speaker 3: deter similar conduct in the future, and of course taking

507
00:30:22,280 --> 00:30:24,760
Speaker 3: into account as well that he's a very wealthy man,

508
00:30:24,800 --> 00:30:27,240
Speaker 3: a very powerful man. Part of that is also why

509
00:30:27,280 --> 00:30:29,520
Speaker 3: the damage award was so large.

510
00:30:29,680 --> 00:30:33,600
Speaker 1: The panel the Second Circuit noted that he made several

511
00:30:33,800 --> 00:30:37,080
Speaker 1: disruptive comments and gestures in front of the judge and

512
00:30:37,160 --> 00:30:40,240
Speaker 1: jury weill Carol was testifying. I mean, it seemed like

513
00:30:40,320 --> 00:30:43,800
Speaker 1: he was his own worst enemy in this trial. What

514
00:30:43,880 --> 00:30:46,080
Speaker 1: was his behavior like in the courtroom that might have

515
00:30:46,160 --> 00:30:47,160
Speaker 1: affected the jury.

516
00:30:48,080 --> 00:30:51,480
Speaker 3: Yeah, you know, the handel did mention that in their decision.

517
00:30:52,160 --> 00:30:55,120
Speaker 3: I covered the trial. I was there was very unusual.

518
00:30:55,160 --> 00:30:57,680
Speaker 3: I covered a lot of trials before, and it stood

519
00:30:57,720 --> 00:31:01,880
Speaker 3: out not just because it was Trump, but just his

520
00:31:02,000 --> 00:31:04,920
Speaker 3: conduct did stand out. At one point, the judge said,

521
00:31:04,960 --> 00:31:06,960
Speaker 3: you know, please don't make me have to remove you

522
00:31:07,080 --> 00:31:10,160
Speaker 3: from the court in front of the jury. And it

523
00:31:10,240 --> 00:31:12,720
Speaker 3: was one with Miss Carroll was testifying that there were

524
00:31:12,720 --> 00:31:16,720
Speaker 3: complaints by the defense that mister Trump could be heard

525
00:31:16,760 --> 00:31:19,120
Speaker 3: muttering and seemed shaking his head and things like that

526
00:31:19,160 --> 00:31:21,560
Speaker 3: in front of the jury, which of course the judge

527
00:31:21,600 --> 00:31:24,800
Speaker 3: does not want to see because that can be distracting

528
00:31:24,800 --> 00:31:27,320
Speaker 3: to the jury or sway the jury. And so it's just,

529
00:31:27,440 --> 00:31:31,840
Speaker 3: you know, completely inappropriate in any trial. And during closing

530
00:31:31,920 --> 00:31:37,000
Speaker 3: arguments as well, when ROBERTA. Chaplin's lawyer was speaking, mister

531
00:31:37,000 --> 00:31:40,520
Speaker 3: Trump just got up and walked out of the courtroom.

532
00:31:40,600 --> 00:31:44,520
Speaker 1: The second circle didn't fault the trial judge striking a

533
00:31:44,600 --> 00:31:49,560
Speaker 1: portion of Trump's own testimony because Trump went beyond the

534
00:31:49,680 --> 00:31:53,520
Speaker 1: yes or no response that his lawyer had agreed to do.

535
00:31:53,560 --> 00:31:57,600
Speaker 3: You recall this, Oh, yes, that was another unusual moment

536
00:31:57,600 --> 00:32:01,040
Speaker 3: in the trial. Because Trump taking the stand was always

537
00:32:01,120 --> 00:32:04,239
Speaker 3: going to be a big moment. We of course were

538
00:32:04,280 --> 00:32:07,200
Speaker 3: prepared for a longer time on the witness stand. I

539
00:32:07,200 --> 00:32:09,200
Speaker 3: think it would only came out to about five minutes.

540
00:32:09,920 --> 00:32:13,719
Speaker 3: But the reason it was so contentious is because, of

541
00:32:13,720 --> 00:32:17,640
Speaker 3: course the judge had already found Trump liable for defamation

542
00:32:17,920 --> 00:32:21,480
Speaker 3: before the trial, and the trial technically was just on

543
00:32:21,880 --> 00:32:25,400
Speaker 3: the damages. So because the judge had already found Trump

544
00:32:25,440 --> 00:32:28,840
Speaker 3: liable based on the record, it was determined by the

545
00:32:28,920 --> 00:32:32,920
Speaker 3: judge that mister Trump could not deny the liability on

546
00:32:32,960 --> 00:32:36,200
Speaker 3: the witness stand, and pretty much everything that Trump wanted

547
00:32:36,240 --> 00:32:38,680
Speaker 3: to say about what was going on, in some way

548
00:32:38,680 --> 00:32:41,560
Speaker 3: it could be construed as denying liability. So there was

549
00:32:41,600 --> 00:32:43,600
Speaker 3: a lot of argument back and forth on that, and

550
00:32:43,640 --> 00:32:47,480
Speaker 3: eventually Trump's lawyer, Alena Habba agreed to I think there's

551
00:32:47,560 --> 00:32:51,840
Speaker 3: four questions and had made guarantees to the judge about

552
00:32:52,160 --> 00:32:54,800
Speaker 3: sort of what the extent of each answer would be,

553
00:32:54,920 --> 00:32:57,000
Speaker 3: and there was one of them that Miss Hobbit said,

554
00:32:57,000 --> 00:33:00,520
Speaker 3: this will just be a yes or no answer. As

555
00:33:00,600 --> 00:33:06,160
Speaker 3: soon as Trump said no, he started continuing on saying

556
00:33:06,200 --> 00:33:08,720
Speaker 3: that he said what he said to defend his family

557
00:33:08,760 --> 00:33:10,960
Speaker 3: and things like that, and the judge interrupted him and

558
00:33:11,320 --> 00:33:14,240
Speaker 3: pulled the jury to disregard everything after the word no.

559
00:33:15,240 --> 00:33:19,400
Speaker 1: Are these comments that he made about eging Carroll? Were

560
00:33:19,440 --> 00:33:21,800
Speaker 1: they made after he became president?

561
00:33:22,520 --> 00:33:26,440
Speaker 3: Right, So this defamation case was focused on only statements

562
00:33:26,480 --> 00:33:29,480
Speaker 3: that he had made from the White House in twenty

563
00:33:29,560 --> 00:33:32,520
Speaker 3: nineteen when she went public with her allegations. So the

564
00:33:32,520 --> 00:33:34,880
Speaker 3: difference between this and the other case was focused on

565
00:33:34,920 --> 00:33:37,880
Speaker 3: sex abuse under New York law. That also did have

566
00:33:37,920 --> 00:33:41,120
Speaker 3: a defamation angle to it as well, concerning separate but

567
00:33:41,200 --> 00:33:44,840
Speaker 3: similar statements that Trump made about eging Carroll after his

568
00:33:44,960 --> 00:33:48,880
Speaker 3: first term. So that's why those statements were included in

569
00:33:48,920 --> 00:33:51,760
Speaker 3: that other case. And this case we've been discussing is

570
00:33:51,840 --> 00:33:54,560
Speaker 3: just focused on comments that he made in twenty nineteen

571
00:33:54,640 --> 00:33:55,720
Speaker 3: during his first term.

572
00:33:56,480 --> 00:34:00,000
Speaker 1: And so he said he had some form of presidential immunity,

573
00:34:00,200 --> 00:34:02,160
Speaker 1: which the Second Circuit rejected.

574
00:34:02,800 --> 00:34:05,120
Speaker 3: That's right. So that was one of the arguments that

575
00:34:05,160 --> 00:34:08,799
Speaker 3: he had been making all along, was that the conduct was,

576
00:34:09,000 --> 00:34:12,759
Speaker 3: you know, while he was president Carrol's side, that it

577
00:34:12,840 --> 00:34:17,480
Speaker 3: wasn't presidential conduct technically. Trump argued, you know, some serious

578
00:34:17,520 --> 00:34:20,680
Speaker 3: allegations are made against the sitting president he has right

579
00:34:20,840 --> 00:34:24,319
Speaker 3: to set the record straight and dispute that. Of course,

580
00:34:24,320 --> 00:34:26,719
Speaker 3: there's a lot of nuance there on both sides. Ultimately,

581
00:34:26,760 --> 00:34:29,720
Speaker 3: he consistently lost on that argument.

582
00:34:30,680 --> 00:34:34,080
Speaker 1: Now they haven't said whether he is going to appeal

583
00:34:34,080 --> 00:34:36,440
Speaker 1: this to the Supreme Court. That's the last avenue I

584
00:34:36,520 --> 00:34:36,920
Speaker 1: take it.

585
00:34:36,880 --> 00:34:41,279
Speaker 3: Here, right. I mean, I think that we see from

586
00:34:41,360 --> 00:34:45,200
Speaker 3: a filing in the Supreme Court, that a recent filing

587
00:34:45,280 --> 00:34:49,040
Speaker 3: that Trump's lawyers are requesting to extend the deadlines for

588
00:34:49,120 --> 00:34:51,960
Speaker 3: him to be able to appeal to the Supreme Court

589
00:34:52,000 --> 00:34:55,520
Speaker 3: that other five million dollar verdict. So I think based

590
00:34:55,520 --> 00:34:58,080
Speaker 3: on that we can expect that he will be formally

591
00:34:58,160 --> 00:35:03,480
Speaker 3: appealing that other case and then probably this one as well.

592
00:35:03,760 --> 00:35:06,960
Speaker 1: Trump did have a huge appellent victory in New York.

593
00:35:06,760 --> 00:35:10,359
Speaker 3: Recently, right, So he did have a big win, although

594
00:35:10,400 --> 00:35:13,520
Speaker 3: it could have been bigger because he ended up appealing it.

595
00:35:13,560 --> 00:35:16,760
Speaker 3: But that was in the New York Attorney General civil

596
00:35:16,840 --> 00:35:20,640
Speaker 3: fraudcase against Trump over claims that he had inflated the

597
00:35:20,719 --> 00:35:24,239
Speaker 3: value of his assets by sometimes billions of dollars a

598
00:35:24,360 --> 00:35:26,839
Speaker 3: year every year for more than a decade in order

599
00:35:26,880 --> 00:35:30,319
Speaker 3: to get better terms on loans. So there was a

600
00:35:30,360 --> 00:35:32,719
Speaker 3: bench trial on that the New York Attorney General won

601
00:35:33,680 --> 00:35:36,600
Speaker 3: and he was hit with a penalty of nearly half

602
00:35:36,640 --> 00:35:41,040
Speaker 3: a billion dollars. So an intermediate appeals court here in

603
00:35:41,080 --> 00:35:45,000
Speaker 3: Manhattan did hear that case over a year ago. Now

604
00:35:45,320 --> 00:35:47,320
Speaker 3: it took a long time to come out with their decision,

605
00:35:47,360 --> 00:35:51,520
Speaker 3: but they recently vacated that massive verdict and that was

606
00:35:51,560 --> 00:35:55,319
Speaker 3: a big win for Trump. But they upheld the liability

607
00:35:55,440 --> 00:35:57,920
Speaker 3: finding against him and all of the other non financial

608
00:35:57,960 --> 00:36:01,080
Speaker 3: sanctions in the case, including ban on Trump and his

609
00:36:01,120 --> 00:36:04,040
Speaker 3: two sons serving as directors of the New York company

610
00:36:04,080 --> 00:36:08,560
Speaker 3: for period of years. So those measures were currently unfold anyway,

611
00:36:08,600 --> 00:36:11,200
Speaker 3: pending appeal. But it was a big win on that

612
00:36:11,280 --> 00:36:14,200
Speaker 3: financial aspect of that case for Trump. He'd argued all

613
00:36:14,239 --> 00:36:17,920
Speaker 3: along that that penalty was too big. Interestingly, the panel

614
00:36:17,960 --> 00:36:21,600
Speaker 3: of judges did not even direct the lower court, the

615
00:36:21,640 --> 00:36:24,879
Speaker 3: trial judge, to recalculate the damages or anything like that.

616
00:36:24,920 --> 00:36:28,719
Speaker 3: They just struck it down and left it there. So

617
00:36:29,280 --> 00:36:32,319
Speaker 3: the New York Attorney General is appealing that aspect of

618
00:36:32,360 --> 00:36:34,920
Speaker 3: the case. She's going to want to revive those damages

619
00:36:35,040 --> 00:36:38,200
Speaker 3: or some amounts, and Trump is also filed the notice

620
00:36:38,200 --> 00:36:41,040
Speaker 3: of appeal to try to overturn the liability to her.

621
00:36:41,600 --> 00:36:44,719
Speaker 1: So those are the three cases, the three civil cases

622
00:36:45,280 --> 00:36:48,880
Speaker 1: that he had in New York. But there's the criminal.

623
00:36:48,560 --> 00:36:51,839
Speaker 3: Case, right, there's the criminal case that we saw how

624
00:36:51,840 --> 00:36:57,120
Speaker 3: that was handled with the sentence of nothing against him

625
00:36:57,200 --> 00:37:00,960
Speaker 3: for the hush money case. But yeah, this is pretty

626
00:37:01,040 --> 00:37:03,319
Speaker 3: much all that's left in New York.

627
00:37:03,520 --> 00:37:05,920
Speaker 1: And he's appealing the verdict in the criminal case. And

628
00:37:06,040 --> 00:37:09,280
Speaker 1: also we have the turnabout is fair play? I guess

629
00:37:09,719 --> 00:37:14,280
Speaker 1: where the Justice Department is investigating New York Attorney General

630
00:37:14,320 --> 00:37:18,719
Speaker 1: Letitia James for mortgage fraud and for whether she violated

631
00:37:18,760 --> 00:37:22,480
Speaker 1: Trump's civil rights by suing him. Thanks so much, Eric.

632
00:37:22,960 --> 00:37:26,560
Speaker 1: That's Eric Larson, Bloomberg Legal Reporter, and that's it for

633
00:37:26,600 --> 00:37:29,200
Speaker 1: this edition of The Bloomberg Law Show. Remember you can

634
00:37:29,239 --> 00:37:32,440
Speaker 1: always get the latest legal news on our Bloomberg Law podcast.

635
00:37:32,760 --> 00:37:35,799
Speaker 1: You can find them on Apple Podcasts, Spotify, and at

636
00:37:35,960 --> 00:37:41,000
Speaker 1: www dot Bloomberg dot com, slash podcast Slash Law, and

637
00:37:41,040 --> 00:37:44,120
Speaker 1: remember to tune into The Bloomberg Law Show every weeknight

638
00:37:44,200 --> 00:37:47,640
Speaker 1: at ten pm Wall Street Time. I'm June Grosso and

639
00:37:47,719 --> 00:37:49,160
Speaker 1: you're listening to Bloomberg