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Obstacles to Menendez Brothers Release From Prison · Bloomberg Law

0:03
Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
0:10
Speaker 2: I'm gonna shake up the bag, draw the lottery tickets,
0:13
Speaker 2: and you'll be called up accordingly. We're gonna line you
0:16
Speaker 2: up that's right where this gentleman is standing, and we'll
0:19
Speaker 2: bring you into the building. There was a lottery to
0:21
Speaker 2: get the hottest ticket in town entry to the Los
0:24
Speaker 2: Angeles Courthouse for the Menendez brothers' first court appearance in decades.
0:29
Speaker 2: People lined up more than five hours before the hearing
0:33
Speaker 2: to get one of the coveted sixteen seats available to
0:36
Speaker 2: the public.
0:37
Speaker 1: Okay, last four numbers of six nine three two.
0:42
Speaker 2: Eric and Lyle Menendez have been in prison since nineteen
0:45
Speaker 2: eighty nine, sentenced to life without parole for the murders
0:49
Speaker 2: of their parents. The case captivated the country in the
0:52
Speaker 2: nineteen nineties and is doing so once again thanks to
0:56
Speaker 2: the recent releases of the Netflix dram Up Monsters and
1:00
Speaker 2: a documentary Lost the discovery of new evidence which could
1:04
Speaker 2: support Eric's claims that he was sexually abused by his father.
1:09
Speaker 2: Technical problems prevented the brothers from appearing virtually from prison,
1:13
Speaker 2: and the hearing lasted only an hour because The judge
1:16
Speaker 2: said he needed time to review seventeen boxes of evidence
1:21
Speaker 2: and also wanted to give the newly elected DA time
1:24
Speaker 2: to weigh in on the case, but he did allow
1:27
Speaker 2: the brothers two elderly aunts to take the stand, and
1:30
Speaker 2: they made an impassioned plea for their nephews for lease.
1:34
Speaker 2: Ninety three year old Joan Anderson vander Mullen Kiddymanendez. His sister,
1:39
Speaker 2: spoke outside the courthouse, Ben said.
1:45
Speaker 1: She give situation, what can a kin do when.
1:55
Speaker 3: I can't stand it?
1:56
Speaker 2: A wrinkle in their case could be the election of
1:59
Speaker 2: the new La County District Attorney Nathan Hockman. He's not
2:03
Speaker 2: adopting Gascon's recommendation and told ABC News he wants to
2:08
Speaker 2: review the case and the law and decide for himself.
2:11
Speaker 2: There's a cloud over that credibility. Is it a just
2:15
Speaker 2: decision or was it just a political ploy? Joining me
2:19
Speaker 2: is Palm Beach County State Attorney Dave Ahrenberg Dave. The
2:22
Speaker 2: hearing yesterday was over a habeas corpus petition the Menendez
2:27
Speaker 2: brothers filed in May of twenty twenty three. That's basically
2:32
Speaker 2: a request for the court to consider whether someone is
2:35
Speaker 2: being lawfully held tell us about the Menendez brothers Habeas
2:40
Speaker 2: corpus petition.
2:41
Speaker 3: The Habeas corpus petition will focus on the new evidence
2:44
Speaker 3: that came out about sexual abuse from Menendez brother's father. Remember,
2:50
Speaker 3: there was evidence that the Menendez brother's father had molested
2:55
Speaker 3: a member of the boy band Menudo. And there's also
2:58
Speaker 3: a letter that actually written by them. Men and his
3:00
Speaker 3: brothers too irrelative about their sexual abuse. None of this
3:03
Speaker 3: was admitted into evidence in their second trial, which led
3:06
Speaker 3: to a guilty verdict. So they rid of habeas corpuses,
3:09
Speaker 3: tried to get a court to consider this new evidence
3:12
Speaker 3: and to reverse the conviction or to set them free.
3:16
Speaker 2: So this is separate and apart from the resentencing recommendation
3:22
Speaker 2: that the then LA District Attorney made last month. The
3:25
Speaker 2: judge here will take different factors into consideration.
3:30
Speaker 3: Right, there are three channels the men and his brothers
3:32
Speaker 3: will pursue to get their release. One is the habeas
3:35
Speaker 3: corpus petition. So the number two would be the resentencing.
3:39
Speaker 3: That's what the former DA, the one who's outgoing, recommended.
3:42
Speaker 3: He wanted them to re sentence because of good behavior
3:45
Speaker 3: in prison to fifty years and then based on the
3:47
Speaker 3: parole rules at the time, they'd be out already, but
3:50
Speaker 3: it's still would have to go to the Parle Board.
3:52
Speaker 3: So that's number two. And the third would be clemency
3:54
Speaker 3: by the governor, which would still involve the Parole Board,
3:57
Speaker 3: but Governor Gavin Newsom has not said web he would
4:00
Speaker 3: agree to it. So there are three ways that Menendez
4:03
Speaker 3: brothers could be released early, and at this point it's
4:07
Speaker 3: hard to say which one they will pursue the most aggressively.
4:11
Speaker 3: They would probably have the best chance, I think inclemency
4:14
Speaker 3: from the governor because of all the attention that's been paid,
4:19
Speaker 3: because the new DA does not seem as keen on
4:23
Speaker 3: resentencing or letting them out early as the outgoing DA.
4:28
Speaker 2: Yeah, the new DA said that he's going to review
4:31
Speaker 2: the extensive prison records, transcripts of the two trials, and
4:36
Speaker 2: voluminous exhibits, as well as consult with prosecutors, law enforcement,
4:41
Speaker 2: defense counsel, and victim family members. So at the very least,
4:45
Speaker 2: that sounds like a long process. Can he just reverse
4:50
Speaker 2: what the former DA recommended?
4:53
Speaker 3: Yes, Because the DA that is outgoing Gasson was just
4:58
Speaker 3: recommending that there be a resentencing. It's not a binding decision,
5:03
Speaker 3: because that's up to the court to make the decision.
5:05
Speaker 3: The new DA can come in and say I reject
5:08
Speaker 3: that recommendation. We do not support an early release, we
5:13
Speaker 3: do not support a new trial, and so that would
5:15
Speaker 3: be very powerful because the court takes into account what
5:19
Speaker 3: the DA's office thinks. And that's why I think perhaps
5:23
Speaker 3: of the three options habeas corpus petition are resentencing by
5:27
Speaker 3: way of the DA, and clemency, that it's clemency through
5:31
Speaker 3: the governor that may be the best route for the
5:33
Speaker 3: Menendez brothers to get out early.
5:35
Speaker 2: The Governor apparently is taking a weight and see attitude.
5:39
Speaker 2: Here's what he said on his podcast.
5:41
Speaker 1: Last week, the Menendez file, which is now a little
5:45
Speaker 1: thicker because we did deeper research in the last ten days.
5:48
Speaker 1: That's all on my desk. I think it's the right
5:50
Speaker 1: thing to do to hear from the new DA before
5:54
Speaker 1: I make any decisions.
5:56
Speaker 2: That doesn't sound particularly promising either.
5:59
Speaker 3: Well, he is giving the right amount of deference to
6:01
Speaker 3: the new DA, And if the new DA comes out
6:04
Speaker 3: and says I don't support resentencing, the Governor can still
6:07
Speaker 3: say I'm going to grant clemency. But it would really
6:10
Speaker 3: be big footing the new DA who was just elected
6:13
Speaker 3: by the people overwhelmingly to say, it doesn't matter what
6:15
Speaker 3: you think, I'm going to let him out through clemency.
6:17
Speaker 3: So I think that Governors's doing the right thing in
6:20
Speaker 3: saying that no matter what I do, at least I
6:23
Speaker 3: owe the new DA and the voters who elected him
6:26
Speaker 3: the respect to hear what they say first.
6:28
Speaker 2: I mean, the Menandez Brothers case wasn't really one of
6:32
Speaker 2: the election issues, was it.
6:34
Speaker 3: Well, yeah, well you can't avoid it. It's a high
6:36
Speaker 3: profile case. So I think one of the reasons why
6:39
Speaker 3: the outgoing DA did what he did was that he
6:41
Speaker 3: knew he had an election around the corner. I mean,
6:42
Speaker 3: the timing would tell you that that had to be
6:45
Speaker 3: a consideration, right. He could have waited until after the
6:48
Speaker 3: election to announce the decision, but announced it just shortly
6:51
Speaker 3: before the election. And similarly, I think the voters took
6:54
Speaker 3: that into consideration. Even though it seems like there's a
6:57
Speaker 3: lot of momentum to release the brothers early, I do
7:00
Speaker 3: think that this was one of the issues. Now, the
7:02
Speaker 3: clear issue though that we're hearing from the voters in
7:05
Speaker 3: that area where they were thick of the loose policies
7:09
Speaker 3: of the DA were seen that he was favoring defendants
7:13
Speaker 3: over victims in many cases, and they wanted a more
7:16
Speaker 3: tough on crime district attorney, and they got it.
7:19
Speaker 2: Let's return to the habeas corpus petition. The hearing has
7:22
Speaker 2: been adjourned until January thirtieth. Dave, you're a prosecutor, does
7:27
Speaker 2: it seem as if there is enough evidence new evidence
7:31
Speaker 2: for the judge to grant the petition?
7:34
Speaker 3: I don't think so. As a prosecutor, I think that
7:38
Speaker 3: there may be grounds for a new trial based on
7:40
Speaker 3: the new evidence when it comes to the murder of Jose,
7:43
Speaker 3: the father, But when it comes to murder of the mother,
7:47
Speaker 3: there's nothing that would change that the mother, Kitty was
7:53
Speaker 3: not credibly accused at the trial of sexual abuse or
7:57
Speaker 3: there's not even evidence that's come out that shows that
7:59
Speaker 3: that's what motivate that they were being victimized by both parents.
8:03
Speaker 3: And so even if you make the case that Jose
8:06
Speaker 3: was a bad guy who molested his children, then how
8:09
Speaker 3: do you still explain Kitty. People say, well, she knew
8:12
Speaker 3: of the abuse and let it happen. But even that,
8:14
Speaker 3: even if you could show that which is not clear,
8:17
Speaker 3: then at best. Maybe that warrants a new trial, not
8:20
Speaker 3: an early release. You remember, the way they massacred the
8:23
Speaker 3: two parents was that they went over their parents' house.
8:25
Speaker 3: The parents were sitting with their backs turned watching TV,
8:28
Speaker 3: eating ice cream, and the two brothers, who planned this
8:31
Speaker 3: extensively blew them away with shotguns. But Kitty did not
8:35
Speaker 3: die right away. She was crawling away, trying to get
8:38
Speaker 3: away when Lyle went back outside to reload the shotgun
8:43
Speaker 3: and then returned to do the final act. And there
8:47
Speaker 3: was so much blood, so much violence, that police thought
8:49
Speaker 3: it was a mob hit. So I'm not moved on
8:54
Speaker 3: getting an early release for these brothers based on what
8:56
Speaker 3: they did to Kitty. Maybe a new trial, but nothing
9:00
Speaker 3: more than that.
9:01
Speaker 2: So the judge handling the havieous petition could order a
9:05
Speaker 2: new trial.
9:06
Speaker 3: Yeah, the judge and the habeas could say that the
9:09
Speaker 3: tenant's rights were violated. There was evidence that should have
9:11
Speaker 3: been introduced that wasn't introduced a trial. Remember, the judge
9:15
Speaker 3: at the time refused to introduce this evidence of abuse.
9:19
Speaker 3: And now there's new evidence. So the judge couldn't say, yes,
9:22
Speaker 3: we're going to reverse the conviction, overturn it and set
9:25
Speaker 3: up for a new trial. The judge could actually even
9:27
Speaker 3: go further and say he's going to let the brothers out,
9:30
Speaker 3: so we'll see what happens. But even if that doesn't work,
9:34
Speaker 3: they could go to the other two routes as we mentioned,
9:36
Speaker 3: the resentencing by way of the local DA and perhaps
9:40
Speaker 3: clemency from the governor.
9:42
Speaker 2: The resentencing by way of the local DA. That would
9:44
Speaker 2: also have to be approved by a judge, a different
9:47
Speaker 2: judge from the court Miss judge.
9:49
Speaker 3: It gets a little complicated, so which judge these motions
9:52
Speaker 3: are filed in front of, But the resentencing first goes
9:56
Speaker 3: through the local DA to make a recommendation, and then
10:00
Speaker 3: it's up to the judge. And I'm not sure if
10:02
Speaker 3: it is it seem judge or if it a different
10:04
Speaker 3: judge that would hear the resentencing requests. But the reason
10:08
Speaker 3: why the DA, the outgoing DA, made the decision to
10:12
Speaker 3: seek a resentencing was not because of the new evidence
10:14
Speaker 3: of sexual abuse, but because the two brothers were model prisoners.
10:18
Speaker 3: They were on good behavior, and to me, that's not
10:22
Speaker 3: a good enough reason to set aside to life in
10:27
Speaker 3: prison sentences. Sentence to life in prison should not get
10:30
Speaker 3: set aside because the inmates decided to be in good
10:33
Speaker 3: behavior while in prison. That should get them privileges in prison,
10:36
Speaker 3: but not early release.
10:38
Speaker 2: But what district Attorney George Gascoon was going to do
10:42
Speaker 2: is legal.
10:42
Speaker 3: Right, Well, the districttorney can recommend anything, but remember this
10:46
Speaker 3: district attorney got voted out of office largely because he
10:49
Speaker 3: was seen as soft on crime. So when he goes
10:52
Speaker 3: in front of a court and says, your honor, let
10:56
Speaker 3: these brothers out early because they behaved well in prison,
11:01
Speaker 3: I think that is something that a judge will reject,
11:05
Speaker 3: especially because the community has let their voice be known
11:08
Speaker 3: that they don't want soft on crime prosecutors. They shouldn't
11:11
Speaker 3: have people who were sentenced for grizzly murders given life
11:16
Speaker 3: sentences to get out years early because they were acting
11:20
Speaker 3: nicely while they're in prison.
11:22
Speaker 2: Dave, most of the family members of the Menendez brothers
11:26
Speaker 2: support their release. Where does that fit into the decisions
11:31
Speaker 2: that are being made by judges and state officials about
11:35
Speaker 2: their release.
11:37
Speaker 3: Well, the victims' families will be heard, and that is
11:40
Speaker 3: a consideration. The fact that most family members support the
11:43
Speaker 3: brother's release will be a factor in the judge's decision.
11:46
Speaker 3: In the DA's recommendation and in the governor's decision on clemency,
11:50
Speaker 3: but it's not unanimous. There's at least one family member
11:54
Speaker 3: who does not want them released, so it's not unanimous,
11:57
Speaker 3: but it is a factor that most do support their release.
12:01
Speaker 2: The next hearing before the judge and the Habeas Corpus
12:05
Speaker 2: petition will be on January thirtieth and thirty first, and
12:10
Speaker 2: their attorney, Mark Garrigo said, we hope that by the
12:13
Speaker 2: end of that hearing or sometime sooner, they'll be released.
12:18
Speaker 2: Is that too optimistic?
12:20
Speaker 3: Yes, They're not going to be released before the Habeas
12:22
Speaker 3: Corpus hearing. The only way that could happen is if
12:25
Speaker 3: Ditgomery gives clemency and then it goes before the pro bore.
12:28
Speaker 3: That's not going to happen. And the fact that we
12:30
Speaker 3: have a new DA and we have a delay and
12:32
Speaker 3: now it's going to slow things down. So the momentum
12:35
Speaker 3: that was there to release the Menandez brothers asap is
12:38
Speaker 3: now slowed because of the election of the new DA.
12:42
Speaker 3: And I think it's a good thing because before we
12:44
Speaker 3: let the passions of the community who's seen movies and
12:48
Speaker 3: TikTok videos about these brothers rule the day. Maybe we
12:52
Speaker 3: need to take a step back and reassess what they
12:54
Speaker 3: actually did and why they did it, and how after
12:57
Speaker 3: they did it they went on a shopping spree and
13:00
Speaker 3: went to NBA games, sitting in the front row and
13:04
Speaker 3: live the life they've always wanted to live. It seemed
13:07
Speaker 3: like at the time, and I stand by it, that
13:09
Speaker 3: this was more financial crime. They wanted to inherit the wealth.
13:12
Speaker 3: They thought they were going to be written out of
13:13
Speaker 3: the will. They wanted their money, and they got what
13:15
Speaker 3: they wanted and lied about it until they were caught,
13:19
Speaker 3: and now they've been in prison ever since.
13:21
Speaker 2: So the next thing to happen in the case will
13:24
Speaker 2: either be the full hearings on January thirtieth and thirty
13:27
Speaker 2: first on the Habeas Corpus petition, or a decision by
13:32
Speaker 2: the New DA about how to handle the case and
13:34
Speaker 2: whether to recommend resentencing and release. So let's turn out
13:38
Speaker 2: to other legal matters. I wanted to get your reaction
13:42
Speaker 2: to the Special Council yesterday dropping charges against Donald Trump
13:49
Speaker 2: in both the election interference case and the classified documents case.
13:55
Speaker 2: I mean, he really had no choice because it was
13:58
Speaker 2: going to happen once tru gotten off as anyway, what's
14:01
Speaker 2: the downside and what's the upside if any.
14:04
Speaker 3: Well, it was inevitable once Trump won the election that
14:07
Speaker 3: they would have to dismiss the charges, but the keywords
14:10
Speaker 3: in the dismissal were without prejudice. That means you can
14:14
Speaker 3: still refile it, and that would take perhaps January twenty
14:18
Speaker 3: twenty nine, So who knows what will happen then. But
14:21
Speaker 3: even if they do refile it, the former president and
14:25
Speaker 3: soon to be president could still try to pardon himself,
14:29
Speaker 3: or he could also claim that under the statute of limitations,
14:32
Speaker 3: you can't refile the charges this many years later. Then
14:35
Speaker 3: the question is whether the course would allow a postponement
14:38
Speaker 3: of the charges because of the internal Department of Justice
14:41
Speaker 3: rule that says you cannot diet a sitting president. There
14:44
Speaker 3: are a lot of moving parts here, but it does
14:46
Speaker 3: seem like Trump is above the law to them because
14:49
Speaker 3: these cases I think are very unlikely to ever amount anything. Now.
14:53
Speaker 3: The only thing left will be his sentencing in New York,
14:56
Speaker 3: which will still be set after he leaves office. And
15:00
Speaker 3: then there's a Georgia case, which who knows what's going
15:02
Speaker 3: to happen there.
15:03
Speaker 2: That seems really stuck and who knows if that will
15:06
Speaker 2: go forward at all. So there is on record now
15:10
Speaker 2: a decision by a federal judge, Eileen Cannon that the
15:15
Speaker 2: appointment of the Special Council was unconstitutional, and the Special
15:19
Speaker 2: Council is trying to move forward with the appeal of
15:23
Speaker 2: that in the case against Trump's two co defendants. Do
15:27
Speaker 2: you think that will work because once Trump comes into office,
15:31
Speaker 2: I assume he's going to have that case against the
15:33
Speaker 2: co defendants dismissed.
15:35
Speaker 3: Well, the case against the two co defendants are allowed
15:38
Speaker 3: to is allowed to continue because the Department of Justice
15:41
Speaker 3: policy just says, you cannot indict a sitting president. You
15:44
Speaker 3: can go after the co defendants, and that is a
15:47
Speaker 3: way a vehicle for Jack Smith to overturn the egregious
15:51
Speaker 3: ruling by Judge Cannon that the Special Council appointment of
15:56
Speaker 3: Jack Smith was unconstitutional. I think he will win on
15:58
Speaker 3: appeal going after Trump. I don't think it's going to matter. Also,
16:02
Speaker 3: the next Attorney General, Pam Bondi, is going to want
16:05
Speaker 3: to use special counsels, and so I think she will
16:08
Speaker 3: go ahead and just move forward with special counsels like that.
16:12
Speaker 3: Judge Canon ruly didn't happen.
16:14
Speaker 2: As you mentioned. Trump has nominated Pam Bondi, the former
16:19
Speaker 2: Attorney general for Florida, to be the next attorney general.
16:24
Speaker 2: And I know you know her, so tell us about her.
16:27
Speaker 3: Well. I worked with her first. I ran against her
16:29
Speaker 3: in twenty ten for attorney general. She won, I lost.
16:32
Speaker 3: She hired me as her drugs Are afterwards, and it
16:35
Speaker 3: does tell you about her that she would reach across
16:38
Speaker 3: party lines to appoint a Democrat and got a lot
16:41
Speaker 3: of criticism from Republican leaders for doing that. I was
16:44
Speaker 3: her drugs Are. I went after the opioid epidemic, the
16:46
Speaker 3: pill mills, and we were able to shut them down
16:50
Speaker 3: and save lives in Florida. So I have a lot
16:51
Speaker 3: of respect for her for that. And as far as
16:54
Speaker 3: a person, she's very well liked. She's a very likable,
16:56
Speaker 3: outgoing person. She will tether her to say, to the
17:00
Speaker 3: rule of law. She has no Matt Gates. She's not
17:03
Speaker 3: going in there to walk out Anthony Fausti and Adam
17:06
Speaker 3: Shift and handcuffs. Although I do think she will start
17:09
Speaker 3: investigations into the investigators, but got to be careful when
17:12
Speaker 3: you do that. Remember what happened to John Durham. He
17:16
Speaker 3: was humiliated when he investigated the investigators, he came up
17:19
Speaker 3: with small ball, low level charges and got quick acquittaled
17:24
Speaker 3: and embarrassment for it. So that's a lesson learned.
17:27
Speaker 2: She has publicly championed Trump's baseless claims of voter fraud,
17:33
Speaker 2: that there was voter fraud in a twenty twenty presidential election.
17:36
Speaker 2: She said this on Fox News last August because the
17:39
Speaker 2: deep state during the last term for President Trump, they
17:42
Speaker 2: were hiding in the shadows. But now they have a
17:45
Speaker 2: spotlight on them and they can all be investigated. The
17:48
Speaker 2: house needs to be cleaned out. That sounds a little
17:52
Speaker 2: conspiratorial and perhaps indicates a witch hunt maybe coming up.
17:58
Speaker 3: Yeah, that's news rhetoric, that's political rhetoric. But I've seen
18:02
Speaker 3: her up close the prosecutor, and there's a difference between
18:06
Speaker 3: what you see on Fox News as a political commentator
18:09
Speaker 3: in what you see as a lawyer's a prosecutor. She's
18:11
Speaker 3: a twenty year prosecutor. She's an eight year attorney general
18:15
Speaker 3: in the state of Florida. I do not expect her
18:17
Speaker 3: to trump up to use the term charges against the
18:20
Speaker 3: president elect's enemies just to please him. I think that
18:23
Speaker 3: she will investigate the investigators, which will open up a
18:26
Speaker 3: can of worms. She'll do things that will be controversial
18:29
Speaker 3: on that front, but overall, I do think she will
18:31
Speaker 3: be tethered to the rule of law, and she'll do
18:33
Speaker 3: things that are popular, like cracking down on illicted fentanyl
18:36
Speaker 3: at the border and going after prohamas supporters on college campuses.
18:40
Speaker 3: I think that hopefully she will stay closer to that
18:44
Speaker 3: in her role as prosecutor and left into revenge for
18:47
Speaker 3: Donald Trump. The person who was going to be Trump's
18:50
Speaker 3: restribution is Matt Gates, and he's no longer at the appointee.
18:54
Speaker 2: When she was Florida AG, she tried to dismantle Obamacare,
19:00
Speaker 2: the provision that's very popular that bans health insurance companies
19:04
Speaker 2: from charging more to customers with pre existing conditions. I mean,
19:09
Speaker 2: it's hard for me to understand the Republicans continuing efforts
19:13
Speaker 2: to dismantle Obamacare, which is so popular, including among their supporters,
19:18
Speaker 2: But that is something she could get involved with.
19:21
Speaker 3: You know, I don't remember exactly what was done then.
19:23
Speaker 3: I think she joined with other attorneys general to try
19:26
Speaker 3: to overturn all of Obamacare, and at the time Obamacare
19:30
Speaker 3: was not as popular as as today today. If they
19:33
Speaker 3: try to do it, it will be a severe backlash. But yes,
19:37
Speaker 3: if you're going to try to overturn our system of healthcare,
19:40
Speaker 3: you got to have something to replace it with. And
19:42
Speaker 3: Trump says he'll have a replacement in two weeks at least.
19:45
Speaker 3: He's been saying that for the last eight years.
19:47
Speaker 2: The confirmation process sounds like it will be much easier.
19:51
Speaker 3: Yeah. I know her, and you know I know what
19:53
Speaker 3: kind of person she is. And although we disagree with politics,
19:56
Speaker 3: we do we have different ideologies. He's always been fair
19:59
Speaker 3: to me. She's always been selling. I have worked well
20:02
Speaker 3: with and she's worked well with Democrats. She's never been
20:04
Speaker 3: a big partisan. She is loyal to Donald Trump. It's
20:07
Speaker 3: clear she is loyal to Donald Trump. I'm not going
20:09
Speaker 3: in this with rose colored glasses. But if you're a Democrat,
20:13
Speaker 3: Tally Yates is not walking through that door. If you're
20:15
Speaker 3: a Democrat, I think this is the best nominee that
20:17
Speaker 3: you're going to get from Donald Trump. And if she's
20:19
Speaker 3: not the nominee, then yeah, maybe you'll get Rurie Giuliani
20:22
Speaker 3: or the MyPillow guy with a law degree.
20:23
Speaker 2: You don't want that, No, you don't, Thanks so much.
20:26
Speaker 2: Dave always a pleasure. That's bomb Beach County State Attorney
20:30
Speaker 2: Dave Ehrenberg coming up next on the Bloomberg Law Show.
20:34
Speaker 2: Senate Democrats are being criticized for making a deal with
20:38
Speaker 2: Republicans to abandon appellate judicial nominees in favor of trial
20:43
Speaker 2: court nominees. I'm June gross when you're listening to Bloomberg.
20:48
Speaker 2: Senate and Democrats have struck a deal with Republicans to
20:52
Speaker 2: abandon four of President Biden's nominees for appellate courts in
20:57
Speaker 2: order to advance his nominees for trial courts. The deal
21:01
Speaker 2: comes after Republicans had employed stalling tactics this week to
21:06
Speaker 2: complicate Democratic efforts to confirm as many of Biden's judicial
21:10
Speaker 2: picks as possible before Republicans gained control of the White
21:14
Speaker 2: House and Senate in January. Many including progressives and a
21:18
Speaker 2: Senator on the Judiciary Committee, are critical of the deal
21:22
Speaker 2: because the appellate courts are one step away from the
21:25
Speaker 2: Supreme Court and policy decisions are made by them For
21:29
Speaker 2: many states. The agreement derails Biden's efforts to place judges
21:34
Speaker 2: on four federal circuit courts before President elect Donald Trump
21:38
Speaker 2: returns to the White House. Joining me is an expert
21:42
Speaker 2: in the federal judiciary. Carl Tobias, a professor at the
21:45
Speaker 2: University of Richmond Law School, tell us about this agreement
21:49
Speaker 2: that Senate Democrats made with Senate Republicans.
21:53
Speaker 4: Carl, Well, it looks like Democrats promised that they would
22:00
Speaker 4: not move on the four Appellate Court nominees who are
22:05
Speaker 4: out of committee and on the floor and awaiting confirmation
22:08
Speaker 4: debates and votes. In return, Republicans agreed not to obstruct
22:14
Speaker 4: a number of district nominees. That number looks like at
22:19
Speaker 4: least seven, but maybe more like a dozen, and so
22:24
Speaker 4: those are the contours of the deal. So that's where
22:27
Speaker 4: things stand right now and are not likely to change
22:31
Speaker 4: because both sides have agreed to this. But of course
22:35
Speaker 4: there's been a lot of criticism from especially the Washington
22:39
Speaker 4: DC public interest groups of the deal because people are
22:44
Speaker 4: saying that just wasn't a very good deal, and many
22:48
Speaker 4: observers believe that the nominees are entitled to, or deserve
22:54
Speaker 4: or warrant or merit an up or down vote. So
22:57
Speaker 4: we'll see what happens. But most of those four people
23:02
Speaker 4: are well qualified and relatively mainstream, and so it seems
23:08
Speaker 4: as if at least three of them would have been confirmed,
23:11
Speaker 4: and maybe all four of them.
23:14
Speaker 2: It doesn't make much sense to me, considering that the
23:18
Speaker 2: circuit courts are one step away from the Supreme Court
23:22
Speaker 2: and are so much more important than the trial courts.
23:27
Speaker 4: That's exactly right. I mean, both sides, Republicans and Democrats,
23:32
Speaker 4: act that way, so it must be true because of
23:36
Speaker 4: course they cover multiple states, they make more policy, they're
23:40
Speaker 4: fewer of those judges, and as you suggest, they're one
23:43
Speaker 4: level below the US Supreme Court, and so both sides
23:49
Speaker 4: know how critical those are. And we saw that in
23:52
Speaker 4: Trump's years with fifty four, which I think was a
23:55
Speaker 4: record for one term of a presidency. And then Biden
24:00
Speaker 4: has confirmed forty five and was hoping to eclipse Trump,
24:04
Speaker 4: but that isn't possible, though he could have come quite
24:08
Speaker 4: close with forty nine if the four on the floor
24:11
Speaker 4: now had received votes.
24:13
Speaker 2: Senator Mazie Herona, who's a Judiciary Committee member, said these
24:18
Speaker 2: nominees emerged from hours long hearings where many have faced
24:21
Speaker 2: unfounded personal and professional tax from Republicans on the Judiciary Committee.
24:26
Speaker 2: The circuit courts are one step removed from the Supreme Court,
24:30
Speaker 2: which makes these nominees especially critical. She's a member of
24:34
Speaker 2: the Judiciary Committee who makes these deals.
24:37
Speaker 4: Well, it sounds like this was a deal made by
24:41
Speaker 4: Senator Schumer with Minority Leader to be soon on Thursday,
24:47
Speaker 4: I believe after the obstruction by the Republicans of the
24:51
Speaker 4: nominee at the district level. I think it was Schumer's decision,
24:56
Speaker 4: perhaps in consultation with Senator Durbin the Charity Sherry Committee,
25:01
Speaker 4: But that's not entirely clear, and there are not many
25:03
Speaker 4: details about it. The most I think telling is a
25:07
Speaker 4: quote from a spokesperson for him saying the trade was
25:11
Speaker 4: four circuit nominees all lacking the votes to get confirmed,
25:15
Speaker 4: which is contested by many for more than triple the
25:18
Speaker 4: number of additional district judges moving forward. That summarizes what
25:24
Speaker 4: the Shumer staffers and I think Schumern himself thought. But
25:29
Speaker 4: many people have criticized that it's unfortunate, especially personally and
25:34
Speaker 4: professionally for the nominees who had ruling hearings, and Senator
25:39
Speaker 4: Rono is forret when she describes it that way and
25:42
Speaker 4: had waited a long time, and the courts need their judges.
25:46
Speaker 4: It's very unfortunate. Did that happen.
25:49
Speaker 2: I understand that judges James Winn of the Fourth Circuit
25:53
Speaker 2: and Jane Brend's letter Stranch of the Sixth Circuit could
25:58
Speaker 2: still walk back theirs. I mean they were only going
26:02
Speaker 2: to semi retire. They weren't going to stop hearing cases.
26:06
Speaker 4: That's correct. They were saying that they would take senior
26:12
Speaker 4: status and have probably a half case loads, and they
26:15
Speaker 4: satisfied the rule of eighties that they were sixty five
26:18
Speaker 4: and had fifteen years of service and were prepared to
26:21
Speaker 4: do that upon the appointment of a successor. But as
26:24
Speaker 4: you suggest, it is not set in stone until it
26:29
Speaker 4: actually happens. And so there is this sort of custom
26:33
Speaker 4: among especially appellate judges, which I think goes back to
26:38
Speaker 4: about a decade ago when a number of Republican appointees
26:42
Speaker 4: started doing that because they didn't want a Democratic president
26:46
Speaker 4: to replace them depending on who was going to win
26:49
Speaker 4: the election. And so it's come forward and as the
26:53
Speaker 4: process has become increasingly partisan to some extent, the judges
26:58
Speaker 4: are more sense to that as well. And so we're
27:02
Speaker 4: seeing that with Republican appointees or appointings of Republican president
27:08
Speaker 4: wanting to be sure that they're replaced by another Republican
27:12
Speaker 4: president and pretty much the same for Democrats. And that's
27:16
Speaker 4: where we are. And so that's what happened. So I
27:19
Speaker 4: don't know what those two judges are likely to do,
27:22
Speaker 4: but it's possible. And there's already a district judge in
27:25
Speaker 4: Ohio who has done the same thing, But it is
27:29
Speaker 4: certainly possible. And the deal then looks, as a number
27:32
Speaker 4: of people have said, like a better deal. In fact,
27:35
Speaker 4: that was the trade to the main seat for Judge Kayata,
27:41
Speaker 4: who originally took senior status, just as the two other judges,
27:46
Speaker 4: the six Circuit and Fourth Circuit judges did with a
27:48
Speaker 4: to be determined designation but then converted to a current vacancy.
27:53
Speaker 4: And then, of course the third Circuit seat was Judge Greenway,
27:57
Speaker 4: and his vacancy is a current vacancy and so will
28:01
Speaker 4: fall to Trump as well as a Kyata one in Maine,
28:04
Speaker 4: the first Circuit, in the third circuit.
28:06
Speaker 2: Let's talk about the ones that are definite, the third
28:09
Speaker 2: Circuit and the first Circuit. What would that do if
28:13
Speaker 2: Trump gets to appoint another judge to those circuits. I mean,
28:18
Speaker 2: the first Circuit is basically all Democrat appointed judges right now.
28:23
Speaker 4: So will there be any flipping, Well, it certainly won't
28:26
Speaker 4: in the first because I think Biden has named just
28:30
Speaker 4: about the entire cohort of active judges. Is the smallest
28:34
Speaker 4: appeals court in the country. It only has six authorized
28:37
Speaker 4: judge ships who are active status, and I believe he's
28:40
Speaker 4: appointed five or four that will not flip. The third circuit,
28:45
Speaker 4: I believe is closer, and it might be that if
28:48
Speaker 4: it's all to Trump to fill Greenway's vacancy, that would
28:52
Speaker 4: mean that I think they would be tied. That's an
28:55
Speaker 4: important court, of course, and of course the nominee a deal.
28:58
Speaker 4: Mungu was extremely well qualified but also belified by Republican
29:04
Speaker 4: senators in his hearing, and it took fifteen months to
29:07
Speaker 4: get to this point.
29:08
Speaker 2: What were their claims against him? Was it that he
29:11
Speaker 2: was anti Semitic?
29:12
Speaker 4: There were questions about that, questions about whether he celebrated
29:19
Speaker 4: nine to eleven in other pretty disgusting questions that were
29:23
Speaker 4: asked of him. Also, he sat on a committee that
29:27
Speaker 4: advised students at Rutgers Law School, and he said that
29:32
Speaker 4: you know, there were hardly any meetings of that group
29:34
Speaker 4: and he had very little to do with the group
29:36
Speaker 4: he agreed to be a board member. They staged some
29:40
Speaker 4: programs that Republicans thought were anti American, if you will,
29:44
Speaker 4: but much of that was not really very well validated.
29:49
Speaker 4: He did get out of the midtee on a party
29:51
Speaker 4: line vote, but never had a four vote, and neither
29:55
Speaker 4: did the others.
29:56
Speaker 2: Trump made fifty four appellate appointments forty five. How many
30:02
Speaker 2: more appellet appointments do you think besides these four that
30:05
Speaker 2: we're talking about now, how many more do you think
30:08
Speaker 2: can come up in Trump's term that he could flip
30:12
Speaker 2: more circuits?
30:13
Speaker 4: Well, that's a really good question. The way I see
30:16
Speaker 4: it right now, if you're counting the numbers, there is
30:19
Speaker 4: a Delaware vacancy that will come open on January fifteen.
30:24
Speaker 4: Judge Kent Jordan is retiring, and so there's that, and
30:28
Speaker 4: then the four we've been talking about, so right now
30:31
Speaker 4: it looks like five. But you should know that there
30:34
Speaker 4: are I believe, at least three dozen appointees of Republican
30:39
Speaker 4: president on the appeals courts who are eligible for senior
30:43
Speaker 4: status and could take it. Some of those go back
30:46
Speaker 4: quite a distance, and so it's not clear that they
30:49
Speaker 4: will do that. But you know, I would expect some
30:51
Speaker 4: of that to happen during Trump's time, but it's hard
30:54
Speaker 4: to estimate how many of those three dozen or so
30:58
Speaker 4: will actually do.
30:59
Speaker 2: So what about district court nominations. How has Biden done?
31:04
Speaker 4: He's done very well. I mean, he has one hundred
31:06
Speaker 4: and seventy three now on the floor. I think Republicans
31:10
Speaker 4: have agreed to seven who will get votes and they
31:13
Speaker 4: will be confirmed pretty certain. And then they are five
31:17
Speaker 4: more who were voted at a committee just last week
31:20
Speaker 4: and they are likely to be confirmed, which would bring
31:24
Speaker 4: his total to something like one hundred and eighty five
31:27
Speaker 4: at the district level. And then his total number of
31:30
Speaker 4: appointees would look something like two thirty or two thirty
31:34
Speaker 4: one to thirty two, depending on how you count it.
31:37
Speaker 4: And then there are two California nominees who had a
31:41
Speaker 4: hearing last Wednesday, and they might come forward and be
31:45
Speaker 4: confirmed because their mainstream judges they had a relatively good
31:51
Speaker 4: hearing and they're quite moderate. So then I think the
31:54
Speaker 4: estimate of the number that Trump will have on the
31:58
Speaker 4: district bench when he comes in on twenty is somewhere
32:03
Speaker 4: in the thirties. So that's what it looks like.
32:06
Speaker 2: Well, this time, Trump won't have the build up of
32:09
Speaker 2: vacancies that Mitch McConnell was able to give him by
32:14
Speaker 2: withholding confirmations of President Obama's nominees, including his Supreme Court nominee.
32:22
Speaker 2: Thanks so much, Carl. That's Professor Carl Tobias of the
32:25
Speaker 2: University of Richmond Law School. And that's it for this
32:28
Speaker 2: edition of The Bloomberg Law Show. Remember you can always
32:31
Speaker 2: get the latest legal news on our Bloomberg Law Podcast.
32:34
Speaker 2: You can find them on Apple Podcasts, Spotify, and at
32:37
Speaker 2: www dot bloomberg dot com slash podcast Slash Law. I'm
32:42
Speaker 2: June Grosso and you're listening to Bloomberg