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Are Shutdown Firings Legal & Mangione Wants Death Penalty Tossed · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grosseo from Bloomberg Radio.
0:10
Speaker 2: There have been fifteen government shutdowns in the last forty
0:14
Speaker 2: four years, but no president has ever used a shutdown
0:18
Speaker 2: to fire large numbers of federal employees until Donald Trump.
0:23
Speaker 2: Even before the shutdown began, Trump threatened to fire federal workers,
0:28
Speaker 2: and he's made good on those threats. According to court filings,
0:32
Speaker 2: at least four thousand federal workers across different agencies have
0:37
Speaker 2: already been fired. Trump blames it on the Democrats.
0:42
Speaker 3: Take your place right now, and it's all because of
0:44
Speaker 3: the Democrats. The Democrats are causing the loss of a
0:48
Speaker 3: lot of jobs with their Uh, it's a shutdown. It's
0:51
Speaker 3: their shutdown, not our shutdown. It's their shutdown.
0:54
Speaker 2: To be clear, the firings are different from the furloughs
0:58
Speaker 2: that always occur when government funding runs out, and this
1:01
Speaker 2: unprecedented action by the Trump administration puts the government in
1:07
Speaker 2: unsharted legal territory because there's no law, rule, or regulation
1:13
Speaker 2: that gives the president licensed to fire federal employees just
1:17
Speaker 2: because funding has lapsed. Joining me is constitutional law expert
1:22
Speaker 2: David Super, a professor at Georgetown Law. He's written about
1:25
Speaker 2: the firings in the Balkanization, a blog of constitutional law
1:31
Speaker 2: scholars David No administration has ever engaged in large scale
1:36
Speaker 2: firings of federal workers during a shutdown before, so there'll
1:41
Speaker 2: be no legal case directly on point. But is it legal.
1:45
Speaker 1: It pretty clearly is not legal for them to do it.
1:49
Speaker 1: For one thing, there's a lapse in appropriations right now,
1:53
Speaker 1: so laying people off requires government activity that is not funded.
1:59
Speaker 1: So simply we think of a layoff as a negative thing,
2:03
Speaker 1: but it takes positive action to figure out who you're
2:06
Speaker 1: going to lay off, what date you're going to lay
2:09
Speaker 1: them off, send them a message, and so on. Those
2:11
Speaker 1: are all non emergency actions that the government can't do
2:15
Speaker 1: when it's unfunded. So right there, that makes it illegal.
2:19
Speaker 2: The first challenge is likely to be based on the
2:22
Speaker 2: Anti Deficiency Act, So tell us what the Anti Deficiency
2:27
Speaker 2: Act is.
2:28
Speaker 1: Well, the Constitution says that no funds shall be drawn
2:31
Speaker 1: from the treasury except if appropriated by Congress, and the
2:36
Speaker 1: Anti Deficiency Act is a law Congress has passed and
2:40
Speaker 1: revised many times to implement the appropriation's clause to make
2:44
Speaker 1: sure that people aren't just spending public money or committing
2:49
Speaker 1: public money on their own. The Anti Deficiency Act basically
2:54
Speaker 1: says that it is a crime for a government official
2:58
Speaker 1: to spend public money without an appropriation. It also says
3:03
Speaker 1: it's a crime to accept voluntary service. The reason it
3:07
Speaker 1: says it's a crime to accept voluntary service is because
3:10
Speaker 1: Congress has been around that game plenty of times, where
3:14
Speaker 1: someone works supposedly for free and then turns around and
3:18
Speaker 1: wants to be paid, so they said, no, we don't
3:20
Speaker 1: even allow you to take volunteer labor unless there's an
3:24
Speaker 1: appropriation to cover the cost.
3:26
Speaker 2: Has anyone ever been prosecuted under that law.
3:30
Speaker 1: There hasn't been, perhaps not surprisingly because the people who
3:35
Speaker 1: would violate it would be members of the same administration
3:39
Speaker 1: as the Attorney General in charge of the Justice Department,
3:42
Speaker 1: but also frankly because people take it very seriously. And
3:47
Speaker 1: I have been involved in a number of cases where
3:52
Speaker 1: government lawyers will do just about anything except something that
3:56
Speaker 1: looks like it might be a violation of the Anti
3:58
Speaker 1: Deficiency Act, and they will dig in their heels and
4:02
Speaker 1: stand on their head to avoid being seen as going
4:05
Speaker 1: crosswise to that which I admire.
4:07
Speaker 2: So what might the administration's response be to lawsuits challenging
4:13
Speaker 2: the firings under the Anti Deficiency Act.
4:17
Speaker 1: It's a little unclear, but they seem to be saying
4:20
Speaker 1: that this is an inherent power of the president, which
4:24
Speaker 1: is pretty strange, because everything the government does, particularly under
4:29
Speaker 1: their unified executive theory, is a power of the president.
4:33
Speaker 1: So does that mean that this inherent power of the president,
4:37
Speaker 1: which they can't locate anywhere in the Constitution, overrides the
4:42
Speaker 1: appropriation's clause, which absolutely does appear in the text of
4:46
Speaker 1: the Constitution. It's a very strange argument.
4:48
Speaker 2: The second possible problem here some of the firings might
4:52
Speaker 2: be illegal impoundments of appropriated funds where unexpired appropriations remain
4:58
Speaker 2: available to pay the terminated employees.
5:02
Speaker 1: Yes, the Supreme Court in nineteen seventy five ruled unanimously
5:08
Speaker 1: that President Nixon could not refuse to spend money that
5:13
Speaker 1: Congress had appropriated, that that's not within the powers of
5:16
Speaker 1: the president. Justice Rnquist signed on to that. Justice Douglas
5:20
Speaker 1: agreed with that result. Everybody of all perspectives on the
5:24
Speaker 1: Court said, no, the president cannot overrule a congressional appropriation
5:30
Speaker 1: unless Congress makes the spending conditional on the president's choice.
5:35
Speaker 1: So when Congress has, for example, provided funding for the
5:40
Speaker 1: Cenators for Disease Control or the Office of Special Education
5:44
Speaker 1: or Community Economic Development. Those funds must be spent by
5:49
Speaker 1: the president. You can't spend money on the Centers for
5:54
Speaker 1: Disease Controls staff if the staff are gone. So he
5:58
Speaker 1: is effectively setting himself up to refusing to spend money
6:02
Speaker 1: that Congress appropriated. That's not appropriate.
6:05
Speaker 2: And in some of these lawsuits that have been brought
6:08
Speaker 2: about the massive federal layoffs initially initiated by Elon Musk,
6:15
Speaker 2: has a Supreme Court taken a position on this.
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Speaker 1: The Supreme Court has not reached the merits of any
6:23
Speaker 1: of these cases. They have indicated that they don't want
6:28
Speaker 1: the government order to spend money until a case has
6:32
Speaker 1: been firmly resolved. But that's not based on the merits
6:36
Speaker 1: of the case, but just on the sense that if
6:39
Speaker 1: the government spends the money, it could never get it
6:41
Speaker 1: back if it ultimately wins the case. So, the only
6:44
Speaker 1: decisions we really have from the Supreme Court or the
6:47
Speaker 1: unanimous decision from nineteen seventy five that says the president
6:51
Speaker 1: has no inherent authority to impound money and a six y'
6:55
Speaker 1: to three decision from nineteen ninety eight that said that
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Speaker 1: even when Congress allowed hell the president to impound money,
7:01
Speaker 1: he still can't do it.
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Speaker 2: But neither of those are from the Roberts Court, which,
7:07
Speaker 2: as you know, has expanded presidential authority in ways that
7:12
Speaker 2: most scholars thought they never would. So is the Roberts
7:16
Speaker 2: Court perhaps going to be different?
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Speaker 1: Well, there's only one justice currently sitting who is sitting
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Speaker 1: in nineteen ninety eight, and that's Justice Thomas, and he
7:25
Speaker 1: voted with the majority that even when authorized by Congress,
7:30
Speaker 1: the president may not impound money. The Court, in the
7:34
Speaker 1: opinion that Justice Thomas signed on to, said that's effectively
7:38
Speaker 1: giving the president the power to amend the law, and
7:42
Speaker 1: under our constitution, only Congress can amend laws.
7:45
Speaker 2: The third ground to challenge the firings that you mentioned
7:48
Speaker 2: in your article is that the action likely violates permanent
7:52
Speaker 2: laws creating and assigning duties to the agencies affected. Explain
7:58
Speaker 2: that argument.
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Speaker 1: Certainly, we don't just come upon these government agencies by chance.
8:05
Speaker 1: They're generally created by Congress. So the Congress has passed
8:10
Speaker 1: a law calling for the Center for Disease Control saying
8:14
Speaker 1: that it is vitally important to the nation's protection against
8:18
Speaker 1: disease and needs to have the resources to respond. You
8:22
Speaker 1: don't have the resource to respond if all your staff
8:25
Speaker 1: is at the Unemployment Office. So this is effectively a
8:29
Speaker 1: violation of the law creating the Centers for Disease Control. Similarly,
8:34
Speaker 1: there's a law creating the Office of Special Education at
8:36
Speaker 1: the Department of Education, giving it a lot of very
8:40
Speaker 1: heavy responsibilities. It can't perform that if it doesn't have
8:44
Speaker 1: any people, and that's true for pretty much all of
8:47
Speaker 1: the agencies affected here. Congress has told the president is
8:51
Speaker 1: to get this done. It has provided the money to
8:53
Speaker 1: get this done, and the president's refusing to get this done.
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Speaker 2: In some of the preliminary cases, though I can think
9:00
Speaker 2: of the Department of Education cases, the Supreme Court has
9:04
Speaker 2: allowed the President to keep doing what he's doing, though
9:08
Speaker 2: right they haven't put a stop on his firing people
9:11
Speaker 2: or not using funds.
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Speaker 1: They haven't, again, not because they've said it's legally correct,
9:19
Speaker 1: but because they've said that they don't want any interim
9:23
Speaker 1: orders to the president compelling this, because the president wouldn't
9:28
Speaker 1: be able to get the money back if the case
9:31
Speaker 1: was ultimately decided in the president's favor. Once these cases
9:36
Speaker 1: have worked their way through the system, which I think
9:38
Speaker 1: is very possible in the current Supreme Court term. We'll
9:42
Speaker 1: now know what the current court thinks about all these things,
9:46
Speaker 1: and at that point, I think it'll be very easy
9:49
Speaker 1: to get emergency orders against them from doing something that
9:53
Speaker 1: we've recently been told to is illegal.
9:55
Speaker 2: That would certainly be a change from the emergency docket. Okay,
9:59
Speaker 2: stay with me. Coming up next, I'll continue this conversation
10:02
Speaker 2: with constitutional law professor David Super of Georgetown Law. After
10:07
Speaker 2: the shutdown, what legal action can federal workers who were
10:11
Speaker 2: fired take? Hundreds of thousands of government workers have been
10:15
Speaker 2: furloughed in recent days, and in a court filing on Friday,
10:19
Speaker 2: the Office of Management and Budget said well over four
10:23
Speaker 2: thousand federal employees would soon be fired in conjunction with
10:27
Speaker 2: the shutdown. Labor unions have already filed a lawsuit to
10:31
Speaker 2: stop the move by President Trump's budget office, which goes
10:35
Speaker 2: far beyond what usually happens in a government shutdown. No
10:39
Speaker 2: president before has used a shutdown to fire large numbers
10:43
Speaker 2: of federal employees. I've been talking to constitutional law professor
10:48
Speaker 2: David Super of Georgetown Law, who's written about the various
10:52
Speaker 2: ways the shutdown can be challenged. A final ground you
10:56
Speaker 2: mentioned in your article is that this action and likely
11:00
Speaker 2: violates several civil service laws, because the Trump administration may
11:07
Speaker 2: not have complied with every single requirement in civil service laws,
11:12
Speaker 2: and there must be a lot of civil service laws
11:14
Speaker 2: about this.
11:16
Speaker 1: There are, and there are very detailed laws about prioritizing
11:21
Speaker 1: who gets laid off when there is a layoff. There's
11:25
Speaker 1: no clear evidence that they've followed that. There are laws
11:29
Speaker 1: about giving people who are more senior the opportunity to
11:32
Speaker 1: bid for other jobs in the government. Nothing that I've
11:36
Speaker 1: seen in the layoff notices that have been shared with me,
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Speaker 1: or that I've read in news accounts suggests they're doing
11:43
Speaker 1: anything of that. And most fundamentally, there is very extensive
11:48
Speaker 1: civil service law against politicizing the civil service. And the
11:53
Speaker 1: President has said he's laying people off from Democrat agencies.
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Speaker 1: I thought they United States agencies, but apparently he considers
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Speaker 1: them Democrat agencies and laying people off on the basis
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Speaker 1: of their political beliefs because they're perceived to be Democrats
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Speaker 1: and Democrat agencies violate several provisions of civil service law
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Speaker 1: against politicizing our civil service.
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Speaker 2: The main government workers' unions filed a lawsuit on September thirtieth,
12:26
Speaker 2: even before the shutdown began, and also the AFLCIO did.
12:31
Speaker 2: Has the Supreme Court rejected the idea of standing by
12:36
Speaker 2: unions in this kind of situation.
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Speaker 1: It's said very little. But there was a case brought
12:43
Speaker 1: by unions and nonprofits against layoffs in the spring and
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Speaker 1: the Supreme Court stayed. It froze the lower court's injunction
12:54
Speaker 1: and said that it had concerns about the standing of
12:56
Speaker 1: the plaintiffs. Like so many of these shadow docat descis,
13:00
Speaker 1: it didn't say what those concerns were. It didn't give
13:03
Speaker 1: us any sense as to whether it thinks these plaintiffs
13:06
Speaker 1: are hopeless or whether it thinks their lawyers just filled
13:08
Speaker 1: out the paperwork wrong.
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Speaker 2: In this case, you had Russell Vought on social media saying,
13:14
Speaker 2: you know the rifts are coming. And as you mentioned before,
13:17
Speaker 2: the Anti Deficiency Act is pretty well known to government officials.
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Speaker 2: So is it the case that the career officials are
13:27
Speaker 2: gone or are not advising against actions that will clearly
13:34
Speaker 2: lead to lawsuits where the government is not in the
13:37
Speaker 2: best position.
13:39
Speaker 1: A lot of Queer people are gone, fired or encouraged
13:43
Speaker 1: to retire or to leave by various waves of actions
13:47
Speaker 1: in departments and by those generally, others have been made
13:51
Speaker 1: very clear that their opinions are unwelcome. Indeed, when you
13:55
Speaker 1: see someone raising concerns about violations of law and that
14:00
Speaker 1: person is promptly fired, you don't raise them yourself. And
14:03
Speaker 1: that's completely contrary to the system we've had for a
14:07
Speaker 1: long time. The courts have trusted the United States government
14:11
Speaker 1: precisely because there was a corps of career people, lawyers
14:15
Speaker 1: and others who were very careful that they always followed
14:18
Speaker 1: the law. Political officials can make the policy choices, that's
14:22
Speaker 1: why we have elections, but the law is permanent until
14:26
Speaker 1: someone changes it, and career people have quite properly refused
14:31
Speaker 1: to do illegal things throughout the years. That safety net
14:35
Speaker 1: of honorable career people has been ripped apart.
14:40
Speaker 2: Do you think this is President Trump once again testing
14:43
Speaker 2: and trying to expand his powers or is it just
14:48
Speaker 2: his theme of there's too much federal government, too many workers,
14:52
Speaker 2: and I want to cut it down.
14:54
Speaker 1: He's suggested that this is political retribution, that he's doing
14:59
Speaker 1: this to punish Senate Democrats for not agreeing to the
15:03
Speaker 1: legislation that his administration wrote without changes. So I have
15:09
Speaker 1: to assume that this is an effort to play politics
15:13
Speaker 1: and put pressure on the Democrats to fold in the
15:15
Speaker 1: current standoffs.
15:17
Speaker 2: Now, if federal workers are fired during the shutdown afterwards,
15:22
Speaker 2: what's their avenue of appeal? Do they try to go
15:25
Speaker 2: to the Merit System's Protection Board.
15:28
Speaker 1: There have been courts that say that if they believe
15:30
Speaker 1: they've been fired improperly, they must go to the Merit
15:33
Speaker 1: System's Protection Board. But that's not going to work very well.
15:36
Speaker 1: Because President Trump I legally fired the only Democratic member
15:41
Speaker 1: of the board, it now doesn't have a quorum and
15:44
Speaker 1: can't hear their cases. President Trump could have appointed a
15:48
Speaker 1: replacement for that person he fired, but he's not chosen
15:51
Speaker 1: to do so, so he has effectively disabled the body
15:57
Speaker 1: responsible for policing his own actions.
16:00
Speaker 2: What about the civil service laws? It seems likely that
16:03
Speaker 2: the Trump administration did not follow the civil service law?
16:06
Speaker 2: So is that an avenue of appealing their termination or
16:09
Speaker 2: getting back pay?
16:11
Speaker 1: In theory, they would go to the Merit Systems Protection
16:15
Speaker 1: Board and if it ruled against them, they could take
16:18
Speaker 1: that to court. But in practice they're not getting any
16:21
Speaker 1: rulings favorable or unfavorable from the Merit System Protection Board
16:26
Speaker 1: because it can't function without a quorum thanks to President
16:29
Speaker 1: Trump's illegal firing of its Democratic member, so they're really
16:34
Speaker 1: stuck in a tramp. In past times, the Supreme Court
16:39
Speaker 1: has said, if appealing to an administrative body would be
16:43
Speaker 1: clearly feudle, you don't have to do it. You can
16:46
Speaker 1: go straight to court. This Supreme Court seems less likely
16:49
Speaker 1: to go in that direction.
16:51
Speaker 2: So much these days seems to depend on the Supreme Court,
16:55
Speaker 2: and we will watch how this litigation unfolds. Thanks so much, David.
16:59
Speaker 2: As always, that's Professor David super of Georgetown Law. Luigi
17:05
Speaker 2: Mangioni's lawyers are asking a New York federal judge to
17:09
Speaker 2: dismiss some criminal charges, including the only count for which
17:14
Speaker 2: he could face the death penalty. His lawyers also said
17:18
Speaker 2: that prosecutors should be prevented from using at trial his
17:21
Speaker 2: statements to law enforcement officers and his backpack where a
17:25
Speaker 2: gun and ammunition were found. They say Mangioni was not
17:29
Speaker 2: read his rights before he was questioned by law enforcement officers.
17:34
Speaker 2: They added that the officers did not obtain a warrant
17:37
Speaker 2: before searching Mangioni's backpack. The twenty seven year old has
17:41
Speaker 2: pleaded not guilty to state in federal charges in the
17:45
Speaker 2: fatal shooting of healthcare executive Brian Thompson on December fourth,
17:50
Speaker 2: as he arrived at a Manhattan hotel for his company's
17:53
Speaker 2: annual investor conference. Pat tell us about the charges that
17:57
Speaker 2: the defenses asking the judge to drop against Mangoni.
18:02
Speaker 4: These two counts, especially count three, murder using a firearm,
18:06
Speaker 4: is the death penalty eligible count. It makes sense for
18:10
Speaker 4: Luigi's Mangion's criminal defense lawyers to make this argument because
18:13
Speaker 4: that would basically stop the government or block the government
18:18
Speaker 4: from putting him to death if a jury would find
18:22
Speaker 4: him guilty and then decide that he should face the
18:25
Speaker 4: death penalty. It's always a two part thing, of course,
18:28
Speaker 4: you know that. So basically that's the effort to try
18:31
Speaker 4: to hamper the government from proceeding with the two gun charges.
18:35
Speaker 4: Count four is using a firearm. But basically Mangion's lawyers
18:40
Speaker 4: are saying, you know, he's accused of stalking, and one
18:44
Speaker 4: of them is cyber stalking, and his lawyers are saying
18:47
Speaker 4: there's no evidence. So these things don't feed into each other.
18:51
Speaker 4: So it's sort of like a natural chain of failing
18:55
Speaker 4: to prove their case, prove it up to support the
18:58
Speaker 4: counts three and four.
19:00
Speaker 2: Yeah, there's saying stalking isn't a crime of violence, right right.
19:04
Speaker 4: And it shouldn't trigger automatically the capital punishment, which is
19:08
Speaker 4: what the DOJ and Pam Bondi has said. The defense
19:12
Speaker 4: has gone on overdrive to try to assail the way
19:15
Speaker 4: the government came upon the death penalty. I mean, typically
19:19
Speaker 4: what has happened. I mean, not only did Joe Biden's
19:22
Speaker 4: administration put a pause on the death penalty for a
19:26
Speaker 4: while there, and of course when Trump came back in,
19:29
Speaker 4: he took it off in his attorney general did not
19:33
Speaker 4: use We've talked about this before. There's a death panel,
19:37
Speaker 4: which basically at DOJ hears a presentation from the defense
19:41
Speaker 4: about whether or not they're mitigating circumstances that the person
19:44
Speaker 4: should not face the death penalty. So these were skipped over,
19:48
Speaker 4: according to Mangione's lawyers, And now they're basically attacking the
19:53
Speaker 4: way the government came upon this indictment, that it's flawed.
19:57
Speaker 2: Yeah, now, something I found this very They're saying that
20:02
Speaker 2: prosecutors should be barred from using some statements he made
20:05
Speaker 2: to police before he was arrested, and evidence found inside
20:09
Speaker 2: his backpack, which includes a gun and ammunition, because the
20:13
Speaker 2: police didn't read his miranda rights to him before questioning
20:17
Speaker 2: him and didn't get a warrant before searching his backpack.
20:21
Speaker 4: Yeah, they described it. It's incredible. I mean, so the
20:24
Speaker 4: scenario we've all heard is, you know that here he
20:26
Speaker 4: was and Manjion was, you know, approached by Altuna police
20:32
Speaker 4: and you know, immediately they found his backpack and they
20:38
Speaker 4: arrested him. And you know, it's a story that his
20:42
Speaker 4: lawyers challenge, saying that they had video bodycam footage as well,
20:47
Speaker 4: and they showed outtakes that they have. But one of
20:50
Speaker 4: the female officers, she picks up his backpack, She doesn't
20:55
Speaker 4: ask for it, She just grabs it, picks it up
20:58
Speaker 4: and takes it away from him and starts rooting around
21:01
Speaker 4: in it and looking around and picking through it, and
21:04
Speaker 4: she finds things such as the gun and the ammunition,
21:09
Speaker 4: as well as his alleged diary, which the prosecution is
21:13
Speaker 4: called a manifesto. But all this evidence was done before
21:18
Speaker 4: they ever got a search warrant, and the female officer
21:21
Speaker 4: claimed that she was worried about him having a bomb,
21:25
Speaker 4: so she has to basically take action to stop this
21:29
Speaker 4: potential bomb from going off, but she never gets a
21:32
Speaker 4: warrant and they don't get it according to the defense,
21:35
Speaker 4: for seven hours.
21:38
Speaker 2: Seven hours is a long time by any standard, and
21:42
Speaker 2: they wouldn't let him leave. They even later took him
21:45
Speaker 2: into custody. They questioned him, but they didn't read him
21:49
Speaker 2: his Miranda rights until later.
21:51
Speaker 4: Yeah, I mean, it is pretty incredible because apparently hours
21:55
Speaker 4: go by that he was questioned and they got comments
21:59
Speaker 4: from him, but they said that he wasn't under arrest.
22:03
Speaker 4: They said, like, don't worry, you're not under arrest. But
22:05
Speaker 4: then bodycam footage shows that he's initially approached by one
22:10
Speaker 4: of them. He's asked if he's the shooter. He asks
22:13
Speaker 4: him his name, he gives a different name, and then
22:17
Speaker 4: they don't tell him anything. An officer telling him he
22:20
Speaker 4: was one hundred percent sure that man Gion matched the suspect,
22:25
Speaker 4: but he never said you're under arrest. And then they
22:28
Speaker 4: surround him, according to the video, and block him from leaving,
22:32
Speaker 4: and they start questioning him, and I think he'd already
22:36
Speaker 4: been sitting there, and they said that he provoked concern
22:38
Speaker 4: because he was there for forty minutes and that he
22:42
Speaker 4: could be charged with loitery. But then they wouldn't let
22:45
Speaker 4: him leave, and then one of the officers, another officer,
22:49
Speaker 4: tells one of the patrol men, you should mirandize him,
22:52
Speaker 4: and they still didn't mirandize him until it seems much
22:55
Speaker 4: later when they got to the station.
22:58
Speaker 2: I mean, they're stopping him from leaving, they have him
23:01
Speaker 2: in custody, they're questioning him. It seems like there are
23:04
Speaker 2: several points at which they should have mirandized him.
23:08
Speaker 4: Right And then basically he'd been sitting there and they
23:11
Speaker 4: questioned him and they started looking at his material and
23:16
Speaker 4: all of this happens. So without a warrant and without
23:19
Speaker 4: being mirandized, they wouldn't let him leave. And yet they
23:22
Speaker 4: took him into custody. But they never said you're under
23:24
Speaker 4: arrest and you have the right to remain silent. So
23:27
Speaker 4: he may have said incriminating statements, but the defense is
23:30
Speaker 4: saying that they knew they were going to get these
23:33
Speaker 4: statements and they never bothered to mirandize him.
23:36
Speaker 2: I'm surprised that this hasn't come out before.
23:40
Speaker 4: Well, I guess what they're also getting now is they
23:42
Speaker 4: have copies of the body cam footage and in real
23:46
Speaker 4: time they can see how it transpired, and then they
23:48
Speaker 4: can have to re engineer backwards what happened, like the
23:52
Speaker 4: TikTok of what happened.
23:54
Speaker 2: Suppose the judge doesn't allow in the evidence from the back,
24:00
Speaker 2: how much would that hurt the case.
24:03
Speaker 4: It's quite an ask by Luigiman Jion's lawyers to do this,
24:08
Speaker 4: but it does seem like the fruits of an attainted search,
24:12
Speaker 4: right and then if you questioned someone and didn't mirandize them.
24:17
Speaker 4: There are cases that defense sites where this has actually
24:20
Speaker 4: happened that there are other cases where courts have thrown
24:24
Speaker 4: out charges based on the fact that it wasn't what
24:27
Speaker 4: the cops used to say when I covered them a
24:30
Speaker 4: homicide cops. It wasn't righteous. So I'm clear if they'll
24:33
Speaker 4: get this request granted by the court, but they have
24:38
Speaker 4: a pretty strong argument whether or not this judge will
24:42
Speaker 4: do that. Also, remember they're dealing with this extraordinary circumstance
24:47
Speaker 4: that you have the President of the United States and
24:49
Speaker 4: high ranking Justice Department officials making comments, So you know,
24:54
Speaker 4: all of this might come together as a package of
24:57
Speaker 4: troubling questions the judge has.
25:00
Speaker 2: And Patty just remind us about what the Judge instructed
25:03
Speaker 2: Justice Department officials last month about making those kind of
25:08
Speaker 2: incendiary statements.
25:10
Speaker 4: The judge has basically ordered the government to explain how
25:15
Speaker 4: these statements got to be made. And to remind you,
25:18
Speaker 4: there was a statement by President Trump who said, man
25:23
Speaker 4: gie own quote shot someone in the back as clear
25:25
Speaker 4: as you're looking at me, as he told Fox News.
25:28
Speaker 4: And then a White House affiliated x account retweeted what
25:34
Speaker 4: Trump said in a screenshot, posting with photo with Fox
25:39
Speaker 4: News and quoting Trump. And then that post was retweeted
25:44
Speaker 4: by the deputy director of the Department of Justice of
25:47
Speaker 4: Public Affairs, and that person said, you know, potus is
25:52
Speaker 4: absolutely right on X. So then another person, the White
25:56
Speaker 4: House Press Secretary, again repeated that she called him a
26:02
Speaker 4: left wing assassin who shot United Healthcare CEO Brian Thompson
26:07
Speaker 4: in the back. And she says that from a White
26:09
Speaker 4: House briefing at the White House. So you know, his
26:13
Speaker 4: lawyers are saying all these statements is a confluence of
26:17
Speaker 4: negative statements that are basically poisoning any potential jury, and
26:22
Speaker 4: it's farming his rights to right to get a fair
26:24
Speaker 4: trial because everyone will be so prejudiced because, look, the
26:27
Speaker 4: President of the United States is saying these things. The
26:30
Speaker 4: judges asked for an explanation, and the government has answered
26:34
Speaker 4: in a recent reply. Federal prosecutors in the Southern District
26:39
Speaker 4: in Manhattan have said, it's nothing to see here because
26:42
Speaker 4: technically the people who made these comments are not prosecutors
26:47
Speaker 4: on the case, so they're not addressing what Donald Trump
26:52
Speaker 4: or anyone a DOJ or anybody in the White House
26:55
Speaker 4: Press secretary said.
26:56
Speaker 2: In a case as big as this, you know, with
26:59
Speaker 2: so much publicity on this case, it would take a
27:03
Speaker 2: lot for the judge to, for example, dismiss a charge
27:07
Speaker 2: or suppress some of that crucial evidence like the gun
27:10
Speaker 2: and ammunition. Although I have to say it does seem
27:14
Speaker 2: like the police didn't follow proper procedures, you know, the
27:18
Speaker 2: basics of mirandizing him. And if you think there's a
27:22
Speaker 2: bomb in a backpack, don't you call the bomb squad
27:25
Speaker 2: or do you just rifle through the backpack? But still,
27:28
Speaker 2: despite that, this is a huge case, and I'm not
27:31
Speaker 2: sure what the judge would be willing to do.
27:34
Speaker 4: Yeah, I mean, it's definitely an attempt by the defense
27:38
Speaker 4: to hamper whatever the government's doing, and whether that means
27:43
Speaker 4: carving out two charges, including one that's death penalty eligible,
27:46
Speaker 4: that obviously is this latest request. Right, they've already asked
27:50
Speaker 4: to dismiss the indictmentment. They're saying they're targeting specifically these
27:54
Speaker 4: two counts, especially the death penalty eligible count, which is
27:58
Speaker 4: Count three. And then you know, it's a big ask.
28:01
Speaker 4: And I mean, aside from those cases rare cases cided
28:04
Speaker 4: by the defense, it does seem extraordinary that the judge
28:08
Speaker 4: would grant it, but I think it's what their defense
28:10
Speaker 4: is trying to do. They'd give their best shot, so
28:13
Speaker 4: to speak.
28:13
Speaker 2: You know, if this were law in order, the judge
28:15
Speaker 2: would grant it, though very quickly. So this is the
28:19
Speaker 2: federal case. We also have the state case, which is
28:23
Speaker 2: going to go to trial first.
28:24
Speaker 4: It's odd, but the state case, even though it's allegedly
28:29
Speaker 4: going first, and the state prosecutors have told the judge
28:32
Speaker 4: and the state case they're going to have the first trial,
28:36
Speaker 4: it seems like all systems are go with the defense
28:39
Speaker 4: focusing on the federal case. Whether that's because they're trying
28:44
Speaker 4: to attack that first, because they think that's the best
28:47
Speaker 4: paths to take. It's unclear.
28:49
Speaker 2: It could be because they're focusing on the death penalty
28:51
Speaker 2: and trying to knock that out of the federal case.
28:55
Speaker 2: But I guess we'll find out as it goes along.
28:57
Speaker 2: Thanks so much, pat. That's Bloomberg Legal reporter Patricia Hurtado,
29:02
Speaker 2: and that's it for this edition of The Bloomberg Law Show.
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