WEBVTT - Juror Denies Lying to Get on Ghislaine Maxwell Jury

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<v Speaker 1>This is Bloomberg Law with June Brusso from Bloomberg Radio.

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<v Speaker 1>I wasn't sure that this day would ever come, and

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<v Speaker 1>I just feel so grateful that the jury believed us

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<v Speaker 1>and sent a strong message that's perpetrators of sexual abuse

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<v Speaker 1>and exploitation will be held accountable, no matter how much

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<v Speaker 1>power and privilege that they have. That was Annie Farmer

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<v Speaker 1>after a jury found Gallaine Maxwell guilty of sex trafficking

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<v Speaker 1>underage girls with Jeffrey Epstein. But now that verdict is

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<v Speaker 1>in jeopardy because a juror did not disclose a history

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<v Speaker 1>of childhood sex abuse during jury selection, but then in

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<v Speaker 1>several newspaper interviews after the verdict, said that he used

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<v Speaker 1>his history to convince fellow jurors to convict Maxwell. That

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<v Speaker 1>juror went from the jury box to the witness stan

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<v Speaker 1>this week in adhering to decide whether Maxwell should get

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<v Speaker 1>a new trial. My guest is former federal prosecutor Jessica Roth,

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<v Speaker 1>a professor at Cardozo Law School. So Jessica during number

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<v Speaker 1>fifty testified that he didn't lie deliberately when he answered

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<v Speaker 1>no to question forty eight on the juror questionnaire, which asked,

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<v Speaker 1>have you or a friend or family member ever been

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<v Speaker 1>the victim of sexual harassment, sexual abuse, or sexual assault.

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<v Speaker 1>He said he was distracted by thoughts of a recent breakup.

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<v Speaker 1>How does that explanation strike you well? As I understand,

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<v Speaker 1>if he also said that he was late in the

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<v Speaker 1>day and it was an honest mistake, and as the

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<v Speaker 1>government argued in its brief opposing the motion for a

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<v Speaker 1>new trial, this was a lengthy questionnaire. This was, I believe,

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<v Speaker 1>towards the end, and it was one of multiple subparts.

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<v Speaker 1>It's really going to come down to whether the judge

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<v Speaker 1>found him credible, and whether the judge believes his testimony

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<v Speaker 1>that he was not intentionally withholding that information but failed

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<v Speaker 1>to appreciate that the question was calling for an answer

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<v Speaker 1>with respect to his own history, or even to appreciate

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<v Speaker 1>what the question was calling for at all because he

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<v Speaker 1>was tired or distracted. Maxwell's lawyers argue that they didn't

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<v Speaker 1>have the ability to question him about possible bias, and

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<v Speaker 1>that they would have tried to get him dismissed. So,

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<v Speaker 1>no matter if he did it unintentionally or intentionally, isn't

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<v Speaker 1>this the kind of juror that the defense should get

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<v Speaker 1>a chance to knock off the jury. Well, if he

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<v Speaker 1>had answered yes to these questions that disclosed his relevant

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<v Speaker 1>own history of sexual abuse, there would have been follow

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<v Speaker 1>up questions for him, as there were for other perspective

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<v Speaker 1>jurors who disclosed that they had also been the victims

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<v Speaker 1>of sexual abuse. There were other such prospective jurors, and

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<v Speaker 1>when they disclosed that information, they were asked additional questions

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<v Speaker 1>to inquire into whether they could be staring i partial

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<v Speaker 1>jurs in the case. So, if this juror had given

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<v Speaker 1>a similar response of yes disclosing his own history of

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<v Speaker 1>sexual abuse, those very same questions would have been asked.

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<v Speaker 1>But it's not conclusive of the motion before the court.

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<v Speaker 1>The court would also have to decide whether or not

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<v Speaker 1>he could have nevertheless, have been a fair and impartial juror.

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<v Speaker 1>The very inquiry that the court would have engaged in

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<v Speaker 1>upon his disclosure of this information, and that was the

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<v Speaker 1>kind of information that court was trying to elicit at

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<v Speaker 1>the hearing on the motion for a new trial, which

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<v Speaker 1>was essentially to ask the follow up questions and to

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<v Speaker 1>try to get at the very same inquiry the court

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<v Speaker 1>would have been engaged in during the vod gear process.

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<v Speaker 1>Had he answered the questions in the affirmative the first

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<v Speaker 1>time around. He swore multiple times that his experience did

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<v Speaker 1>not affect his ability to judge Maxwell's case impartially. But

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<v Speaker 1>isn't it apparent that his past abuse made a difference

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<v Speaker 1>because he essentially said it did. He told several media

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<v Speaker 1>outlets that he raised his childhood abuse during deliberations to

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<v Speaker 1>sway other jurors who doubted the testimony of some of

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<v Speaker 1>the government's witnesses against Maxwell. So don't his statements to

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<v Speaker 1>the media dis prove what he said on the stand. Well.

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<v Speaker 1>One of the challenges that the Court bases in deciding

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<v Speaker 1>this motion is that the Court is precluded from considering

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<v Speaker 1>any statements or other information about what was said during

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<v Speaker 1>the jury deliberations in deciding the motion. So, even though

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<v Speaker 1>it's been reported in the media what he said during

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<v Speaker 1>the deliberations referencing his own history of sexual abuse, those statements,

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<v Speaker 1>anything about what happened in the jury room cannot be

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<v Speaker 1>part of the Court's inquiry at this juncture, and so instead,

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<v Speaker 1>what the Court is focused on is what is the

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<v Speaker 1>nature of his history with sexual abuse? Is there anything

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<v Speaker 1>about the particulars of his abuse or about essentially how

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<v Speaker 1>he has processed and reacted to it, as evidenced by

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<v Speaker 1>how he responded during the word year process. Is there

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<v Speaker 1>anything about all of that that would suggest that he

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<v Speaker 1>was not a fair and impartial juror, though the court

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<v Speaker 1>is really cabin in terms of what it can consider

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<v Speaker 1>in deciding whether he is a juror who would have

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<v Speaker 1>been rock for cause because of concerns about him being

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<v Speaker 1>fair and impartial, the juror had told the court that

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<v Speaker 1>he wouldn't testify at the hearing unless he got immunity.

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<v Speaker 1>Can you draw any inferences from that? I think that

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<v Speaker 1>that is just the product of him and his lawyer

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<v Speaker 1>recognizing that he had potential criminal exposure based on the

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<v Speaker 1>fact that he had given answers under oath during the

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<v Speaker 1>voyader process that he has subsequently realized were not true,

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<v Speaker 1>and so there was the possibility of exposure for perjury,

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<v Speaker 1>and so he said, through his lawyer, he would have

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<v Speaker 1>start his Sistmendment right against self incrimination, and to overcome

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<v Speaker 1>that assertion of the privilege, the government needed to grant

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<v Speaker 1>him immunity, effectively saying we will not use your testimony

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<v Speaker 1>here in this hearing against you. In an subsequent criminal prosecution.

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<v Speaker 1>So I don't think we can infer anything from the

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<v Speaker 1>fact that he took the fifth and was granted immunity

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<v Speaker 1>other than the fact that he recognized there was the

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<v Speaker 1>possibility of criminal exposure based on his statements during the

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<v Speaker 1>dear process under oath. So what is the standard that

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<v Speaker 1>the judge will use to try to decide whether or

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<v Speaker 1>not to grant a new trial. The ultimate standard is

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<v Speaker 1>whether or not the judge is satisfied that this is

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<v Speaker 1>a juror who was able to be fair and impartial.

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<v Speaker 1>In this case, the defense is pointing to the facts

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<v Speaker 1>of his abuse and the fact that he did not

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<v Speaker 1>disclose them as evidence of the fact that he was

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<v Speaker 1>biased and could not be fair. I think the defense

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<v Speaker 1>and its briefing also pointed to the fact that he

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<v Speaker 1>had given interviews to be sort of speaking out the limelight,

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<v Speaker 1>is suggesting that he was biased and against mis maxwell,

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<v Speaker 1>as well as some statements he made to the media

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<v Speaker 1>about how this is essentially a win for victims everywhere,

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<v Speaker 1>as again suggesting bias. The government is pointing to the

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<v Speaker 1>fact that this was a split verdict. It was not

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<v Speaker 1>a guilty verdict on all accounts, which suggests that he,

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<v Speaker 1>as well as all the other jurors, were careful and

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<v Speaker 1>discerning about the evidence, and that the verdict was not

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<v Speaker 1>the product of biased on his parts. They've also pointed

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<v Speaker 1>to some of his other statements to the media about

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<v Speaker 1>how careful he was with respect to reviewing the evidence,

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<v Speaker 1>and that he went in with an open mind and

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<v Speaker 1>somewhat skeptical in fact, and presumed this maxwell in a sense,

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<v Speaker 1>until proven guilty. So it's really going to come down

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<v Speaker 1>to the judge's assessment of whether or not this was

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<v Speaker 1>a juror who was capable of being fair and impartial.

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<v Speaker 1>If he had been asked the kinds of questions during

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<v Speaker 1>the Vardier process that he was asked that this hearing,

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<v Speaker 1>would the judge have excused him? Those are fundamentally the

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<v Speaker 1>questions the court is going to be struggling with. If

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<v Speaker 1>the court determined that he lied intentionally in order to

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<v Speaker 1>get on the jury, that's going to be a factor

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<v Speaker 1>that's going to weigh heavily, I think toward a finding

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<v Speaker 1>that he is not or was not fair and impartial.

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<v Speaker 1>If the court determines that it was inadvertent, that would

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<v Speaker 1>be a factor that would be significant in determining that

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<v Speaker 1>he could have been and was fair and impartial. So

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<v Speaker 1>whether he lied or not would just be one factor

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<v Speaker 1>among many. It wouldn't be determinative. Well, the parties are

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<v Speaker 1>actually in disagreement about that. You see their brief. The

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<v Speaker 1>government is saying that it's actually a prerequisite that the

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<v Speaker 1>court firm and that he lied intentionally under its reading

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<v Speaker 1>of the relevant precedents in the Second Circuit. The defense

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<v Speaker 1>takes a different view of those precedents and says that

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<v Speaker 1>it's not a prerequisite that he have intentionally lied, but

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<v Speaker 1>that effectively that's one factor. And so the court is,

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<v Speaker 1>i think, as a threshold matter, perhaps going to have

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<v Speaker 1>to resolve that question. If the court finds that he lied,

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<v Speaker 1>perhaps the court won't have to reach that question necessarily.

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<v Speaker 1>I think really the court will only have to decide

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<v Speaker 1>if the court finds that he did not intentionally lie.

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<v Speaker 1>Because in that case, if the government is correct and

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<v Speaker 1>its reading of the precedent that it is a prerequisite

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<v Speaker 1>that he has lied, right, then the court wouldn't go

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<v Speaker 1>further in its inquiry. Does the judge consider at all

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<v Speaker 1>the fact that the victims would have to testify again

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<v Speaker 1>at a new trial and the length of time it

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<v Speaker 1>took to try maxwell are those considerations. They're not considerations

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<v Speaker 1>in an immediate sense. They're not part of the legal

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<v Speaker 1>standard that the court is going to be applying here,

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<v Speaker 1>which is much more specific to whether or not the

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<v Speaker 1>juror was fair and impartial. But in a sense, considerations

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<v Speaker 1>about the impact on witnesses and concerns about finality are

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<v Speaker 1>essentially baked into the overall standards that courts apply when

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<v Speaker 1>considering motions for a new trial. Motions for a new

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<v Speaker 1>trial are disfavored in part because of the disruption to

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<v Speaker 1>victims lives and witnesses lives the idea that they would

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<v Speaker 1>have to testify again, and so courts are instructed generally

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<v Speaker 1>under the standards governing motions for a new trial that

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<v Speaker 1>they should only be green when there's essentially a manifest injustice.

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<v Speaker 1>But then when we get to the specifics of the

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<v Speaker 1>rationale for emotion for a new trial being based on

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<v Speaker 1>a juror who gave false statements during war a dear,

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<v Speaker 1>then in a sense we get a much more specific

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<v Speaker 1>standard that's really focused on whether the juror was fair

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<v Speaker 1>and impartial. Would you be surprised if the judge granted

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<v Speaker 1>a new trial. It happened so rarely, it does happen

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<v Speaker 1>so rarely. Not having been in the courtroom, it's hard

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<v Speaker 1>to get a feel or what the witness's demeanor was

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<v Speaker 1>like and answering these questions, I think a lot is

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<v Speaker 1>going to turn on the judge's evaluation of the witness's

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<v Speaker 1>credibility in answering these questions about why he did not

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<v Speaker 1>give statements that were true, because whether it's despositive or not,

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<v Speaker 1>whether or not he intentionally lied, it's certainly going to

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<v Speaker 1>be a very heavy factor. If the court finds that

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<v Speaker 1>he lied, that would tend to suggest more a motivation

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<v Speaker 1>on his part to try to get on the jury,

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<v Speaker 1>and that in turn suggests more of a bias towards

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<v Speaker 1>the defendants, and therefore that he would not have been

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<v Speaker 1>Sara and impartial. Thanks for being on the show, Jessica.

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<v Speaker 1>That's former federal prosecutor Jessica Roth, a professor at Cardozo

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<v Speaker 1>Law School. The Supreme Court handed down two decisions involving

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<v Speaker 1>state secrets. The court reversed a win for the First

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<v Speaker 1>War on Terror detainee Zubda, saying the government doesn't have

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<v Speaker 1>to turn over information about a LED CIA black sides

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<v Speaker 1>in Poland because doing so would harm national security. In

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<v Speaker 1>ruling for the government, the Justice has affirmed a sweeping

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<v Speaker 1>assertion of the so called state secrets privilege that allows

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<v Speaker 1>the US to continue to stay mum about the existence

0:11:12.880 --> 0:11:16.880
<v Speaker 1>of black sites abroad, even though the information is widely known.

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<v Speaker 1>And the Supreme Court ruled in favor of the government

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<v Speaker 1>in its effort to limit disclosure of the surveillance of

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<v Speaker 1>Muslim communities in southern California. In a unanimous ruling by

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<v Speaker 1>Justice Samuel Alito, the Court said that the U. S.

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<v Speaker 1>Court of Appeals for the Ninth Circuit got it wrong

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<v Speaker 1>when it said that the state secrets privilege used to

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<v Speaker 1>block information the government deems harmful to national security, is

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<v Speaker 1>totally displaced by the Foreign Intelligence Surveillance Acts procedures. Joining

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<v Speaker 1>me as former federal Prosecutor George Newhouse of Richard's Carrington, So,

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<v Speaker 1>George tell us about the case involving the FBI. So

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<v Speaker 1>it was a unanimous nine and no decision involving a

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<v Speaker 1>case where the FBI FBI versus Fuzzaga, which, again, as

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<v Speaker 1>you correctly point out, the second decision in two days

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<v Speaker 1>dealing with this state secrets doctrine, something I might add

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<v Speaker 1>that we rarely, very rarely see, particularly in the criminal world,

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<v Speaker 1>because if it's a state secret, the government protects the

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<v Speaker 1>secrets first of all by not bringing the case. So

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<v Speaker 1>in Zubaya, that was a civil case brought by someone

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<v Speaker 1>who had been subjected to shall we say, enhanced interrogation techniques,

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<v Speaker 1>some call that torture. UM. So he said, I have

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<v Speaker 1>a claim against the United States for torturing me, and

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<v Speaker 1>he filed a lawsuit, and the government said, well, we

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<v Speaker 1>can't really defend this case because to defend the case

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<v Speaker 1>would involve the disclosure of top secret classified information state secrets,

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<v Speaker 1>and the court, I believe, upheld that that claim in

0:12:55.240 --> 0:13:00.520
<v Speaker 1>that case. Um. The Zaga, the case involving the internal

0:13:00.559 --> 0:13:05.160
<v Speaker 1>investigation of some Muslims in Orange County, California, is a

0:13:05.160 --> 0:13:09.360
<v Speaker 1>little bit more interesting because in that case, likewise, they

0:13:09.400 --> 0:13:12.400
<v Speaker 1>brought a civil case that involved, by the way, a

0:13:12.960 --> 0:13:16.240
<v Speaker 1>fascinating dispute going back to two thousand and six, and

0:13:16.240 --> 0:13:19.320
<v Speaker 1>if you remember, after two thousand one, for almost a decade,

0:13:20.000 --> 0:13:23.319
<v Speaker 1>the FBI spent an enormous amount of time and resources

0:13:23.880 --> 0:13:27.080
<v Speaker 1>following Muslims around, and in that case they launched a

0:13:27.120 --> 0:13:32.920
<v Speaker 1>fourteen month counter terrorism operation or investigation dealing with these

0:13:33.240 --> 0:13:37.439
<v Speaker 1>Muslim community in southern California, UM. And here they relied,

0:13:37.440 --> 0:13:40.959
<v Speaker 1>as they frequently do in these cases, on an informant,

0:13:41.040 --> 0:13:44.720
<v Speaker 1>a guy named Craig Monteya, when he came posing as

0:13:44.720 --> 0:13:48.120
<v Speaker 1>a Muslim convert um, and as they always do in

0:13:48.160 --> 0:13:51.320
<v Speaker 1>these cases, recorded all of his conversations with everyone in

0:13:51.360 --> 0:13:55.360
<v Speaker 1>the mosque, recorded license numbers, and it's like a page

0:13:55.360 --> 0:13:58.320
<v Speaker 1>out of the Godfather, and turned all that information over

0:13:58.400 --> 0:14:01.680
<v Speaker 1>to the to the FBI. The main difference being, unlike

0:14:01.720 --> 0:14:05.760
<v Speaker 1>the Godfather, the Muslims in Orange County weren't violating the law.

0:14:05.840 --> 0:14:09.320
<v Speaker 1>They weren't doing anything other than they say, exercising their

0:14:09.360 --> 0:14:12.920
<v Speaker 1>first mment rights. So they brought a lawsuit that said, hey,

0:14:13.000 --> 0:14:16.480
<v Speaker 1>you can't do this to us. This was an illegal

0:14:17.440 --> 0:14:20.360
<v Speaker 1>surveillance because you were doing it because of our our

0:14:20.400 --> 0:14:23.920
<v Speaker 1>religious creed, not not because we were suspective of any

0:14:24.080 --> 0:14:26.640
<v Speaker 1>any wrongdoing. And the interesting twists in this case is

0:14:26.680 --> 0:14:30.320
<v Speaker 1>this their informant, after about a year, came up clearly

0:14:30.320 --> 0:14:34.800
<v Speaker 1>with nothing, and he then began to make provocative statements

0:14:35.520 --> 0:14:40.600
<v Speaker 1>about jihad and other clearly criminal acts. That's so alarmed

0:14:40.680 --> 0:14:44.280
<v Speaker 1>the pete the Muslims in Orange County that they reported

0:14:44.320 --> 0:14:47.360
<v Speaker 1>it to the FBI kind of my right. Um. The FBI,

0:14:47.520 --> 0:14:51.440
<v Speaker 1>of course immediately shut down their operation. UM, they parted ways,

0:14:51.480 --> 0:14:53.840
<v Speaker 1>and at one point the informant then made go went

0:14:53.960 --> 0:14:57.440
<v Speaker 1>public saying I had been investigating this group in in

0:14:57.480 --> 0:15:01.600
<v Speaker 1>Orange County, and in two thousand eleven, UM, on the

0:15:01.600 --> 0:15:06.400
<v Speaker 1>basis of the spine the Muslims in Orange County, I

0:15:06.440 --> 0:15:10.160
<v Speaker 1>brought a lawsuit. So that was an interesting twist. So

0:15:10.240 --> 0:15:13.520
<v Speaker 1>tell us how state secrets came up. They brought the

0:15:13.600 --> 0:15:17.400
<v Speaker 1>lawsuit and the government responded by saying to the district court, well,

0:15:17.440 --> 0:15:19.680
<v Speaker 1>you need to dismiss the case because the only way

0:15:19.680 --> 0:15:24.560
<v Speaker 1>we could defend this case would be to disclose state secrets.

0:15:25.080 --> 0:15:29.480
<v Speaker 1>And the plainists said, well, unfortunately, under the statue called

0:15:29.480 --> 0:15:33.600
<v Speaker 1>the Foreign Surveillance Intelligence Act or FISA, UM, there's a

0:15:33.640 --> 0:15:37.800
<v Speaker 1>section of that Act eighteen oh six point f that basically,

0:15:37.840 --> 0:15:42.200
<v Speaker 1>according to the plaintiffs, repeals the State Secrets Act. It's

0:15:42.240 --> 0:15:45.400
<v Speaker 1>supplants it, and it provides for a separate procedure for

0:15:45.440 --> 0:15:49.280
<v Speaker 1>the district court to decide whether or not otherwise would

0:15:49.320 --> 0:15:53.040
<v Speaker 1>be privileged or class sign information can be disclosed. So

0:15:53.080 --> 0:15:55.640
<v Speaker 1>that's the case that went to the Ninth Circuit. The

0:15:55.720 --> 0:15:59.720
<v Speaker 1>district judge dismissed the case. The Ninth Circuit said, no,

0:16:00.240 --> 0:16:03.480
<v Speaker 1>that was wrong, and they reversed on the basis that

0:16:03.880 --> 0:16:07.760
<v Speaker 1>FISA they claimed, repealed the State Secrets Act. Now that's

0:16:08.520 --> 0:16:12.680
<v Speaker 1>a remarkable and unusual holding that the government appealed to

0:16:12.720 --> 0:16:16.200
<v Speaker 1>the Supreme Court. So I guess the justices found it

0:16:16.240 --> 0:16:20.280
<v Speaker 1>remarkable as well. It was a unanimous decision. Tell us

0:16:20.320 --> 0:16:23.840
<v Speaker 1>about it. So the Supreme Court decided, look, we read

0:16:24.440 --> 0:16:29.080
<v Speaker 1>visa carefully, and there's nothing in this particular section eighteen

0:16:29.160 --> 0:16:32.960
<v Speaker 1>h six f which was decided that repeals the State

0:16:33.080 --> 0:16:36.520
<v Speaker 1>Secrets Act um. And the Alito, who is of course

0:16:36.600 --> 0:16:39.800
<v Speaker 1>conservative and a strict constructionists, so there's nothing in that

0:16:39.960 --> 0:16:44.440
<v Speaker 1>statute that repeals it, even implicitly. And therefore the Court,

0:16:44.560 --> 0:16:48.520
<v Speaker 1>on a very narrow ground, reversed the Ninth Circuit and said,

0:16:48.680 --> 0:16:51.360
<v Speaker 1>this case can go back to the District court. State

0:16:51.480 --> 0:16:55.880
<v Speaker 1>secrets doctrine may well apply. Undoubtedly it will um, and

0:16:55.920 --> 0:16:58.760
<v Speaker 1>then you know, they'll be further proceedings. So it was

0:16:58.800 --> 0:17:01.200
<v Speaker 1>a very interesting collision in between these. No one has

0:17:01.240 --> 0:17:04.000
<v Speaker 1>ever had a case that I'm aware of where fis

0:17:04.040 --> 0:17:08.359
<v Speaker 1>a very limited statute um in a way collided with

0:17:08.400 --> 0:17:10.639
<v Speaker 1>the State secret sect. But we may see more of

0:17:10.680 --> 0:17:13.639
<v Speaker 1>these kinds of disputes. Finds that by the way, really

0:17:13.680 --> 0:17:18.879
<v Speaker 1>mainly authorizes the government to conduct foreign intelligence surveillance of

0:17:19.040 --> 0:17:23.359
<v Speaker 1>foreign entities basically spies for a foreign governments that are

0:17:23.440 --> 0:17:27.080
<v Speaker 1>running around in the US spying on our citizens are

0:17:27.119 --> 0:17:30.159
<v Speaker 1>subject to fies A surveillance and very rarely does that

0:17:30.240 --> 0:17:33.800
<v Speaker 1>information ever does a government ever attempt to inder it

0:17:33.840 --> 0:17:35.840
<v Speaker 1>into a criminal case. So that's why it was an

0:17:35.840 --> 0:17:40.320
<v Speaker 1>interesting decision. Since the informant went public, can they use

0:17:40.440 --> 0:17:44.359
<v Speaker 1>his testimony in the lawsuit? Great question? So what the

0:17:44.520 --> 0:17:48.680
<v Speaker 1>informant would testify to is undoubtedly going to be okay

0:17:48.720 --> 0:17:52.520
<v Speaker 1>because the informant almost by definition, would not have been

0:17:52.560 --> 0:17:56.520
<v Speaker 1>told about the classified, the state secret portion because the

0:17:56.560 --> 0:18:01.520
<v Speaker 1>informant was not an FBI employee. He was who knows

0:18:01.560 --> 0:18:03.960
<v Speaker 1>what his motivation was, but he was a private citizen

0:18:04.200 --> 0:18:07.000
<v Speaker 1>through the FBI then recruited to work for them. So

0:18:07.680 --> 0:18:10.359
<v Speaker 1>it's possible that there could be some instructions that the

0:18:10.400 --> 0:18:13.200
<v Speaker 1>FBI gave the informant that the government would claim to

0:18:13.240 --> 0:18:15.880
<v Speaker 1>be a secret and like the district court, of course,

0:18:15.920 --> 0:18:19.399
<v Speaker 1>when that claim is made, will weigh it, balance the

0:18:19.440 --> 0:18:22.560
<v Speaker 1>interest there made, and be what's called an in camera

0:18:22.640 --> 0:18:25.920
<v Speaker 1>expert a hearing, which bees the judge would do close

0:18:26.000 --> 0:18:28.919
<v Speaker 1>to the public and decide whether or not there any secrets.

0:18:29.080 --> 0:18:33.560
<v Speaker 1>Now that the information is primarily going to be UM sequestered,

0:18:33.600 --> 0:18:37.520
<v Speaker 1>if you will, will be why did the government target

0:18:37.600 --> 0:18:41.920
<v Speaker 1>this particular Muslim community, What was the predication or basis

0:18:41.960 --> 0:18:45.000
<v Speaker 1>for that investigation? And the government will claim that that

0:18:45.080 --> 0:18:51.119
<v Speaker 1>information would necessarily disclose um intelligence and or investigative or

0:18:51.200 --> 0:18:55.360
<v Speaker 1>counter intelligence techniques, UM that obviously they need to keep

0:18:55.440 --> 0:18:59.520
<v Speaker 1>secret because our enemies will follow this closely and could learn, Oh,

0:19:00.040 --> 0:19:02.360
<v Speaker 1>you want to get away with spying in the US

0:19:02.440 --> 0:19:04.800
<v Speaker 1>and beat the FBI, and this is how you do it.

0:19:05.040 --> 0:19:08.879
<v Speaker 1>So State secrets will be adjudicated or decided by the

0:19:08.960 --> 0:19:12.720
<v Speaker 1>probably the district court in this case. But yes, states

0:19:12.760 --> 0:19:16.159
<v Speaker 1>secrets doctrine was really revived by the Supreme Court in

0:19:16.200 --> 0:19:18.679
<v Speaker 1>this instance. So I'm wondering if you look at this

0:19:18.760 --> 0:19:23.320
<v Speaker 1>case together with the Zoo Beta case, it seems like

0:19:23.760 --> 0:19:26.960
<v Speaker 1>it's going to be very difficult to sue the federal

0:19:27.000 --> 0:19:32.320
<v Speaker 1>government when what's alleged is an illegal investigation in this case,

0:19:32.680 --> 0:19:37.760
<v Speaker 1>you know, an investigation that violates religious freedom. No, it's

0:19:37.800 --> 0:19:40.280
<v Speaker 1>a great point, that's correct. It's a nice catch, that

0:19:40.359 --> 0:19:42.919
<v Speaker 1>catch twenty two. And the catch twenty two is you

0:19:42.920 --> 0:19:46.480
<v Speaker 1>can sue the government claiming that the investigation violated your

0:19:46.480 --> 0:19:49.639
<v Speaker 1>civil rights, your First Amendment rights, but you may be

0:19:49.760 --> 0:19:53.360
<v Speaker 1>then denied the actual underlying evidence in the possession sole

0:19:53.440 --> 0:19:56.159
<v Speaker 1>possession of the federal government that would enable you to

0:19:56.240 --> 0:19:59.600
<v Speaker 1>prove that case. So the case will be ultimately thrown

0:19:59.640 --> 0:20:02.760
<v Speaker 1>out for lack of evidence. And that evidence is in

0:20:02.800 --> 0:20:05.440
<v Speaker 1>the hands of the government, and the State Secrets Act,

0:20:05.480 --> 0:20:08.480
<v Speaker 1>at least according to the government, exists to protect that

0:20:08.640 --> 0:20:12.199
<v Speaker 1>information from being disclosed. So there's a balancing that's going

0:20:12.200 --> 0:20:16.520
<v Speaker 1>to occur. Uh. And as it usually happens in these cases, um,

0:20:17.119 --> 0:20:19.000
<v Speaker 1>the finger, if you will, goes on the side of

0:20:19.000 --> 0:20:22.960
<v Speaker 1>the scales favoring the government, making these cases extremely difficult

0:20:23.000 --> 0:20:26.800
<v Speaker 1>to make. This was unanimous, whereas the other one was.

0:20:27.359 --> 0:20:31.320
<v Speaker 1>The Zabeta case was splintered every which way. Why was

0:20:31.400 --> 0:20:33.760
<v Speaker 1>this one so much easier? Is it just because it

0:20:33.800 --> 0:20:38.280
<v Speaker 1>was narrow? Well, it was easier because, frankly, it was

0:20:38.320 --> 0:20:42.640
<v Speaker 1>a narrow question of statutory interpretation, and you're right. When

0:20:42.680 --> 0:20:46.359
<v Speaker 1>it's nine zero and you have the six conservatives and

0:20:46.480 --> 0:20:51.159
<v Speaker 1>three liberal justices all agreeing, then clearly they all agreed

0:20:51.200 --> 0:20:54.520
<v Speaker 1>that the statute in this case BISA did not overrule

0:20:54.600 --> 0:20:58.199
<v Speaker 1>the State Secrets Acting. Alita wrote a very short but

0:20:58.720 --> 0:21:02.080
<v Speaker 1>very tightly reason to be in um and and indeed

0:21:02.080 --> 0:21:04.560
<v Speaker 1>they stressed in the in his decision that this was

0:21:04.600 --> 0:21:09.360
<v Speaker 1>a narrow question question um about whether advised it displays

0:21:09.359 --> 0:21:12.159
<v Speaker 1>states secret. The Justice has made a clear and sending

0:21:12.160 --> 0:21:15.200
<v Speaker 1>it back um that the plaintiffs are free to litigate

0:21:15.240 --> 0:21:18.400
<v Speaker 1>and free to they can free to challenge the imposition

0:21:18.440 --> 0:21:20.679
<v Speaker 1>of the State Secrets Act. So I think it was

0:21:21.240 --> 0:21:24.840
<v Speaker 1>nine zero because that the case will continue, perhaps not

0:21:25.000 --> 0:21:30.040
<v Speaker 1>very long. But I think the case involving Zoobida, the

0:21:30.119 --> 0:21:33.160
<v Speaker 1>torture at the Black Side overseas, I think that one

0:21:33.240 --> 0:21:35.919
<v Speaker 1>clearly was probably going to be going to be killed

0:21:35.920 --> 0:21:38.840
<v Speaker 1>by the fact that almost of the evidence that the

0:21:38.880 --> 0:21:41.640
<v Speaker 1>government would have in its possession relating to the claims

0:21:42.160 --> 0:21:45.320
<v Speaker 1>would clearly be covered by state secrets and therefore the

0:21:45.359 --> 0:21:49.000
<v Speaker 1>government would be entitled to withhold it. Thanks George. That's

0:21:49.040 --> 0:21:52.560
<v Speaker 1>George new House of Richard's Carrington, And that's it for

0:21:52.600 --> 0:21:55.320
<v Speaker 1>this edition. Of the Bloomberg Law Show. Remember, you can

0:21:55.359 --> 0:21:57.719
<v Speaker 1>always get the latest legal news by listening to our

0:21:57.720 --> 0:22:02.040
<v Speaker 1>Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,

0:22:02.080 --> 0:22:07.280
<v Speaker 1>and at www dot Bloomberg dot com, slash podcast, Slash Law,

0:22:07.600 --> 0:22:09.800
<v Speaker 1>and don't forget to join us for The Bloomberg Law

0:22:09.840 --> 0:22:12.640
<v Speaker 1>Show every week now at ten am Wall Street Time,

0:22:12.920 --> 0:22:16.120
<v Speaker 1>right here on Bloomberg Radio. I'm joom Brasso, and you're

0:22:16.160 --> 0:22:17.280
<v Speaker 1>listening to Bloomberg