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Fifth Circuit Most Reversed & Olympian Charged With Felony · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
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Speaker 1: The most conservative federal appellate court in the country, the
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Speaker 1: Fifth Circuit Court of Appeals topped the list of the
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Speaker 1: circuits most reversed by the Supreme Court for the third
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Speaker 1: year in a row. The Justices reversed the Fifth Circuit
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Speaker 1: eight times out of eleven cases, or in roughly seventy
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Speaker 1: three percent of cases. The reversals included some high profile cases,
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Speaker 1: like that involving a Mississippi law allowing absentee ballots postmarked
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Speaker 1: by election day and received up to five days later
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Speaker 1: to be counted, a law the Supreme Court upheld in
0:43
Speaker 1: a five to four decision, and Trump appointees on the
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Speaker 1: Fifth Circuit fared very poorly. The Justices heard four cases
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Speaker 1: from the Fifth Circuit decided by panels with a majority
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Speaker 1: of Trump appointees, and reversed in all. My guest is
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Speaker 1: an expert in constitutional law, Harold Krant, a professor at
1:02
Speaker 1: the Chicago Kent College of Law. What do you think
1:05
Speaker 1: the Fifth Circuit is getting reversed so much?
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Speaker 2: You know, I think it may be close to statistical anomaly.
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Speaker 3: The cases were various. There is not a theme.
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Speaker 2: They weren't even necessarily highly politicized cases as they were
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Speaker 2: the last two terms from the Fifth Circuit. So I
1:23
Speaker 2: wouldn't put that much stock in the fact that the
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Speaker 2: Fifth Circuit was the most overruled this year. It just
1:29
Speaker 2: happened some way and sometimes obviously.
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Speaker 3: The rate overall is very high.
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Speaker 2: At seventy percent in terms of reversals, and so this
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Speaker 2: is just a pope puri of cases. There were a
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Speaker 2: little bit under the radar, and it wasn't even as
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Speaker 2: ideologically charged as some of the decisions have been in
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Speaker 2: the last couple of years. So you know, sometimes just
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Speaker 2: the numbers are the numbers, and you sort of shake your.
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Speaker 3: Head and said, that's odd.
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Speaker 2: And that's where they think the Fifth Circuit reversal rate
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Speaker 2: stands for this year.
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Speaker 1: So, I mean, it used to be years ago that
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Speaker 1: it was always the Ninth Circuit that was getting reversed,
2:01
Speaker 1: and you know, because it was on the liberal side,
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Speaker 1: And this year the Ninth Circuit came in fourth for reversals.
2:08
Speaker 1: Is it because the Ninth Circuit is not quite as
2:10
Speaker 1: liberal as it used to be.
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Speaker 3: I think the Ninth Circuit has changed. I mean, I
2:14
Speaker 3: certainly agree with that observation.
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Speaker 2: And again, the circuits sometimes don't have ideologically charged cases.
2:20
Speaker 2: There are just a lot of cases about how to
2:22
Speaker 2: make sure that the circuits are uniform in terms of
2:26
Speaker 2: their view of a law, whether it's you know, with
2:28
Speaker 2: port law or question of trust law, and so these
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Speaker 2: cases just sometimes need to be reconciled and it's not
2:36
Speaker 2: a matter of ideological shift.
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Speaker 1: The first Circuit I thought this was unusual. You may
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Speaker 1: say a statistical anomaly or whatever, but the First Circuit,
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Speaker 1: which generally leans liberal, had two cases reviewed and they
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Speaker 1: were both affirmed. I mean, does that say anything. Is
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Speaker 1: the First Circuit more in line with the Court?
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Speaker 3: I don't think so.
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Speaker 2: This is too much of a small sample size to
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Speaker 2: really draw any conclusion from that kind of data. You know,
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Speaker 2: I do think that the Fifth Circuit, as you start
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Speaker 2: out with, has been quite conservative and was at loggerheads
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Speaker 2: with the Biden administration. So it's not surprising that a
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Speaker 2: lot of the cases went to the Supreme Court just
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Speaker 2: the way it was when the Ninth Circuit years ago
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Speaker 2: was very liberal until a lot of the cases came
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Speaker 2: up to the Supreme Court. But in one or two
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Speaker 2: cases in the Circuit, I don't think you can really
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Speaker 2: judge any kind of developments or evolution on that basis.
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Speaker 1: Do you think that the judges on the Fifth Circuit
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Speaker 1: are more willing to test the envelope and push the
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Speaker 1: law in the mole?
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Speaker 2: I absolutely believe that in the cases that I've read,
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Speaker 2: in the areas that I've studied, which is mostly the
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Speaker 2: administry of law power of the executive, they.
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Speaker 3: Are very willing to push the envelope.
3:43
Speaker 2: And you know, it's no secret that two members of
3:45
Speaker 2: the Fifth Circuit are interested in being nominated by President
3:49
Speaker 2: Trump in case there's another opening, as of course there
3:51
Speaker 2: was rumored to be. So I think that that plays
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Speaker 2: all into the fact that the Fifth Circuit is known
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Speaker 2: for being more veterous than some of their sisters.
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Speaker 1: So let's discuss some of the cases, and one very
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Speaker 1: high profile left into the last week of the term
4:07
Speaker 1: that says a lot Watson versus rn C, and the
4:12
Speaker 1: justices upheld the Mississippi law allowing absentee ballots postmarked by
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Speaker 1: election day and received it up to five days later
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Speaker 1: to be counted.
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Speaker 4: That reversed.
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Speaker 1: A Fifth Circuit panel composed of three judges appointed by Trump.
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Speaker 1: The Justice has heard four cases from the Fifth Circuit
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Speaker 1: decided by majority Trump appointed panels and reversed in all
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Speaker 1: of them. Are the Trump appointees more conservative than other
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Speaker 1: judges on the circuit?
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Speaker 2: I don't think they're conservative in the old fashioned sense
4:41
Speaker 2: of conservative with the small c but they're very much
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Speaker 2: in line with the administration and they're sympathetic to the
4:48
Speaker 2: administration's goals. So I think that they view some of
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Speaker 2: the cases before them from that lens, which is understandable,
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Speaker 2: and so that's why their decisions can be reviewed. And
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Speaker 2: sometimes we've even by the what we consider to be
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Speaker 2: a conservative Supreme Court today.
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Speaker 1: You know, I've noticed that with the DC Circuit a
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Speaker 1: lot of times when there are two to one decisions
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Speaker 1: with two Trump appointees in the majority and a Democratic
5:16
Speaker 1: appointee in descent, the Circuit will agree to have an
5:19
Speaker 1: on bank hearing, and then the case usually gets reversed.
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Speaker 1: Because there are more Democratic appointees than Republican appointees on
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Speaker 1: the DC's circuit. The Fifth Circuit apparently has a high
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Speaker 1: rate of reviewing decisions on bank compared to other circuits,
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Speaker 1: And I'm wondering why when twelve of its seventeen judges
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Speaker 1: are Republican appointees.
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Speaker 2: I think that there's still ideological divisions on the Fifth Circuit,
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Speaker 2: and they have a preference to making sure that they're
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Speaker 2: all on a court and that they've vetted the issues.
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Speaker 2: And I think some of that is healthy to make
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Speaker 2: sure if they think it's an important case, that they
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Speaker 2: get the whole court to weigh in, and so it's
5:59
Speaker 2: not just having the prospect of one panel against another panel.
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Speaker 2: So in that sense, I think it's actually a a
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Speaker 2: healthy development that there is more kind of percolation of
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Speaker 2: these issues before the Fifth Circuit makes a final decision.
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Speaker 2: That being said, of course, as you point out, the
6:15
Speaker 2: Fifth Circuit is probably the most ideologically aligned with President
6:19
Speaker 2: Trump in the entire country.
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Speaker 1: When the Supreme Court reverses a circuit, do the judges
6:26
Speaker 1: on the panel that gets reversed are they embarrassed? You know?
6:30
Speaker 1: Sometimes the Court is pretty snippy in the comments they
6:34
Speaker 1: make about the lower court decision.
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Speaker 3: I have talked to a number of judges about this.
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Speaker 2: Some judges view it as a badge of honor if
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Speaker 2: they're reversed by the Supreme Court, you know, Others try
6:45
Speaker 2: perhaps at the margin to think through why they're were
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Speaker 2: reversed and try to change a little bit of their
6:52
Speaker 2: approach in the future. But I think in today's world,
6:56
Speaker 2: when we are so commonly look at judging as power
7:00
Speaker 2: and people think about the Supreme Court as just a
7:03
Speaker 2: powerful broker in our society, I don't think that judges
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Speaker 2: really feel I mean, they may feel upset that their
7:09
Speaker 2: positions didn't win, but I don't think they feel chastised
7:13
Speaker 2: or mortified at all just because they've been reversed by
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Speaker 2: the Supreme Court. They know that's part of the structure
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Speaker 2: and they know what they got into.
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Speaker 1: And maybe for the two judges who are looking to
7:24
Speaker 1: be Supreme Court nominees, it is a badge of honor. Arguably,
7:29
Speaker 1: the highest profile reversals of this term were the Supreme
7:33
Speaker 1: Court reversing itself, and these were all six to three
7:37
Speaker 1: decisions down ideological lines. So you had Trump v. Slaughter,
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Speaker 1: where the Court overturned its own ninety year old precedent
7:47
Speaker 1: in Humphrey's Executor, giving the president more power. In another
7:51
Speaker 1: case about campaign finance rules, the Court overturned a twenty
7:55
Speaker 1: five year old case that placed limits on coordinateditures between
8:01
Speaker 1: political parties and candidates, and while not technically a reversal,
8:06
Speaker 1: the liberal justice has said, the Conservatives effectively gutted what
8:10
Speaker 1: remained of the Voting Rights Act, and in the Cisco case,
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Speaker 1: the Court undid a core holding of a prior case.
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Speaker 1: This is all the Conservatives overturning so many decisions in
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Speaker 1: one term.
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Speaker 2: The Court's decisions do not reflect any reference for precedent,
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Speaker 2: and that is clear not just in the high level
8:30
Speaker 2: cases of the Humphies executive being overruled after ninety years,
8:36
Speaker 2: but in lesser cases as well, most particularly in the
8:40
Speaker 2: Voting Rights Act, which is a kind of shocking turnabout,
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Speaker 2: but also as you mentioned in the campaign finance, and
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Speaker 2: the Court seemingly says, well, we're here, we're the Court,
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Speaker 2: and we don't really bound by another court. If we
8:53
Speaker 2: deem that the voting rights tack should be narrowed, if
8:56
Speaker 2: we deem that the presidential power should be expanded, it
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Speaker 2: despite the precedence. And so I think that's really all
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Speaker 2: clearly with the piece with the view of this court
9:07
Speaker 2: as its activists. It's activists not in the ways of
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Speaker 2: the work cart, but it's activists in the ways of
9:13
Speaker 2: trying to knit together their own conception of religious rights,
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Speaker 2: of dei of presidential power, and other.
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Speaker 3: Hot button issues.
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Speaker 1: So what do you teach in law school? I mean,
9:24
Speaker 1: when I went to law school, you know, we learned
9:26
Speaker 1: all about precedent and we study those cases that were
9:29
Speaker 1: president I mean, what do you teach now about Supreme
9:32
Speaker 1: Court interpretation.
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Speaker 2: President's still important as a background principle, but I think
9:37
Speaker 2: you also have to be a realist and understand that
9:40
Speaker 2: ideological priors and perspectives will change how court makes its decision.
9:46
Speaker 2: And there are great examples of that from this term
9:49
Speaker 2: and from others as well, So that sort of students
9:52
Speaker 2: understand the rules of the game, but they understand that
9:55
Speaker 2: politics and ideology can so called trump those kinds of neutral.
10:00
Speaker 3: Principles, and litigators need to know that they do.
10:03
Speaker 2: Know that they study individual justices, how they vote, how
10:05
Speaker 2: they could sort of try to appeal to each individual
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Speaker 2: justices priors in the Supreme Court in order to get
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Speaker 2: their point across and hope for a victorious case.
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Speaker 1: Coming up next on the Bloomberg Lawn Show, I'll continue
10:18
Speaker 1: this conversation with Professor Harold Krant to the Chicago Kent
10:22
Speaker 1: College of Law more about the Supreme Court's term and
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Speaker 1: the ideological differences between the justices that were so apparent.
10:31
Speaker 1: I'm June Grosso and you're listening to Bloomberg. The ideological
10:37
Speaker 1: differences among the Supreme Court justices were never more apparent
10:41
Speaker 1: than this term. Nearly a quarter of all rulings were
10:45
Speaker 1: six to three, with Republican appointees in the majority and
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Speaker 1: Democratic appointees in dissent. That's up from eleven percent last term.
10:56
Speaker 1: And Justice Elaina Kagan, the former Solicitor General and Hart
11:00
Speaker 1: Law School dean widely viewed as a pragmatic consensus builder
11:04
Speaker 1: on the Court, authored her first loan descent after more
11:08
Speaker 1: than fifteen years on the bench. She told her colleagues
11:12
Speaker 1: they missed the mark in a ruling about Cuban property seizures.
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Speaker 1: I've been talking to Professor Harold Krant of the Chicago
11:19
Speaker 1: Kent College of Law. So Elena Kagan, during oral arguments
11:24
Speaker 1: and in some of her descents, has complained about the
11:28
Speaker 1: Court not following precedent. Are there any conservative justices who
11:33
Speaker 1: do it here more to precedent than others who are
11:36
Speaker 1: more concerned about it?
11:38
Speaker 2: Not entirely, in my mind, I don't think there's any
11:41
Speaker 2: kind of real fidelity to president amongst the conservatives, And
11:45
Speaker 2: maybe that's probably not a sort of a cornerstone of
11:48
Speaker 2: the liberals either. We're much more involved in sort of
11:52
Speaker 2: a fight through the soul of the court, I think,
11:54
Speaker 2: than we are worried about president these days. I mean,
11:57
Speaker 2: obviously when really struck out this last term is the
12:00
Speaker 2: strong six' three division in a quarter of the. Cases you,
12:04
Speaker 2: know the six conservatives voting within themselves in a lot
12:07
Speaker 2: of the, cases and the three there was voting on
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Speaker 2: the losing end in a. Lot so that's really it's
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Speaker 2: a larger percentage than their prior. TERMS i think that's
12:15
Speaker 2: really the most significant. Development and you, know within that
12:19
Speaker 2: we do see some swing, justices Mostly barrett And roberts
12:23
Speaker 2: to some Extent, kavanaugh little lesser courses on some kind
12:27
Speaker 2: of cases will. Split but you, Know alito And thomas.
12:31
Speaker 3: Will not be.
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Speaker 2: Bunch so you see a fractured court and again heavily
12:36
Speaker 2: ideological with a little bit of. Swing and as we,
12:40
Speaker 2: saw you, know in the tariff's, case the birthright, case you,
12:43
Speaker 2: know most importantly the ballot case that you mentioned from
12:45
Speaker 2: The Fifth, circuit those were the cases where we saw
12:49
Speaker 2: the new kinds of majorities. BUILT i think that's the
12:52
Speaker 2: biggest takeaway from what we've.
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Speaker 1: Seen, yeah, so as you, mentioned nearly a quarter of
12:57
Speaker 1: all rulings where six to three down id logical, lines
13:01
Speaker 1: and that's up from eleven percent last, term so that's
13:03
Speaker 1: quite a big. Jump the cases tended to be the
13:06
Speaker 1: highest profile, cases the cultural issue. Cases we talked about
13:10
Speaker 1: The slaughter, case expanding presidential, power the case eliminating campaign
13:15
Speaker 1: finance restrictions for political, parties another reversal, there transgender women
13:20
Speaker 1: and girls in sports. CASES i, mean these are cases
13:24
Speaker 1: where you know you could almost predict that there's going
13:28
Speaker 1: to be an ideological, split for, example anything involving LGBT
13:33
Speaker 1: q rights or voting, RIGHTS i, mean is one of
13:37
Speaker 1: the biggest takeaways from this, term the way The court
13:41
Speaker 1: just hit the last nail in the coffin of The
13:44
Speaker 1: Voting Rights act SOMETHING i.
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Speaker 2: AG i think your point that it's predictable is sad
13:51
Speaker 2: but true in the sense that you can look at
13:53
Speaker 2: the ideological priors of the justices and figure out how
13:56
Speaker 2: they're doing a side in most of the big particularly
13:59
Speaker 2: the socialistes such as you, know transgender, rights such as voting,
14:04
Speaker 2: rights and we all know how those cases we're going
14:07
Speaker 2: to end, up and there's still Some Fourth amendment cases
14:10
Speaker 2: where the justices will cross ideological, lines and there's some
14:14
Speaker 2: other kinds of you, know venue issues where the.
14:18
Speaker 3: Lines will be.
14:19
Speaker 2: Crossed but in the major social issues, cases that's WHERE
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Speaker 2: i think the distinctions become, very very drawn and the
14:26
Speaker 2: results are easy to.
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Speaker 1: Predict and you, know when you hear the justices, talk
14:30
Speaker 1: at least the, conservatives they always make a point to
14:32
Speaker 1: stress this high rate of. Unanimity and there were unanimous
14:37
Speaker 1: opinions in nearly forty five percent of, cases which is
14:40
Speaker 1: in line with recent. Terms but what are those. CASES i,
14:43
Speaker 1: mean it's mostly cases that we're not paying attention.
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Speaker 2: TO i, mean some people, are they're not the high
14:50
Speaker 2: visibility political. Issues on the high visibility political, issues that's
14:54
Speaker 2: where unanimity has totally gone out the. Window and we
14:58
Speaker 2: see these deep set divisions among the justices with, again
15:02
Speaker 2: luckily some kind of swing with You Chief, Justice Justice
15:07
Speaker 2: barrett and to some, Extent Justice. Kavanaugh and you, know
15:10
Speaker 2: that's the. Court even If Justice alito, leaves it's not
15:13
Speaker 2: going to. Change and we're going to see more of
15:15
Speaker 2: this in the coming.
15:16
Speaker 1: Terms the numbers that we're talking, about you, know the
15:20
Speaker 1: stat pack that was done On scotus. Blog that doesn't
15:23
Speaker 1: take into account the emergency or shadow, docket where the
15:29
Speaker 1: decisions disproportionately handed victories to The trump administration and usually
15:35
Speaker 1: six to three as. WELL i, mean there were so
15:37
Speaker 1: many of those cases that are not being counted here, right.
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Speaker 2: And the court it OPENS solf up to very serious
15:44
Speaker 2: criticism bro operated those shadow doctor, cases AND i think,
15:47
Speaker 2: justifiably without allowing percolation of the, issues without allowing vetting
15:52
Speaker 2: of these important. Decisions they just really changed the law
15:56
Speaker 2: on the ground by use of the shadow, docket and
15:59
Speaker 2: that was done in the ideologically charged, way that same
16:02
Speaker 2: kind of six'.
16:02
Speaker 3: Three breakdown we'll.
16:05
Speaker 1: Have to see how the summer goes for. The justices
16:08
Speaker 1: last summer they were very busy with the. Shadow docket
16:10
Speaker 1: we'll see if that happens again, this summer likely depending
16:13
Speaker 1: on how many Emergencies the trump.
16:15
Speaker 5: Administration has one emergency we've seen so Far Is president
16:20
Speaker 5: trump Asking the court again to take up the Case Of,
16:24
Speaker 5: eugene carroll the person who the jury found that he had.
16:28
Speaker 3: SEXUALLY assaulted i don't think.
16:30
Speaker 2: THEY will i would be shocked if they took it
16:32
Speaker 2: up Just Because president trump, asked twice.
16:35
Speaker 3: But that's going to be one of the tests on their.
16:37
Speaker 3: IMMEDIATE horizon i mean.
16:38
Speaker 1: He's using a different theory. This time his last appeal
16:43
Speaker 1: focused on technical questions involving the federal rules of evidence for,
16:48
Speaker 1: civil cases And The supreme court had turned away his
16:52
Speaker 1: appeal without making. A Comment so trump had argued before
16:57
Speaker 1: that the jurors shouldn't have been allowed to hear testimony
17:00
Speaker 1: about two prior alleged sexual assaults or listen To The
17:05
Speaker 1: access hollywood tape that we're all. FAMILIAR with, i mean
17:08
Speaker 1: the second circuit had upheld, the verdict saying that the
17:11
Speaker 1: testimony of the other alleged victims And The access hollywood
17:16
Speaker 1: recording helped establish a pattern of Conduct. By trump is
17:21
Speaker 1: that in line with? Other, CIRCUITS yeah i.
17:23
Speaker 2: Mean there's always a question of course of conduct prior
17:26
Speaker 2: bad acts and be abused that kind. Of evidence but
17:28
Speaker 2: it becomes important in trying to figure out someone's method.
17:33
Speaker 2: Of operations someone is inclined to precede a. Certain path
17:39
Speaker 2: it's not a major break in, the law and so
17:42
Speaker 2: the difficulty That The supreme court, Has, is yes sometimes
17:45
Speaker 2: these kinds of evidentary rulings can be abused it can be,
17:49
Speaker 2: second guests but unless there's going to be a new
17:52
Speaker 2: kind of break in the law or an fhull new doctrine,
17:55
Speaker 2: put on it's probably not. Certa worthy so it's doubtful
17:59
Speaker 2: That the court, will that even if they're sympathetic and
18:01
Speaker 2: they might Be To president, trump's CLAIMS that i doubt
18:05
Speaker 2: they would find this would be worthy of A Full supreme.
18:08
Speaker 1: Court review in the, New filing trump is saying that
18:12
Speaker 1: the jury's verdict was tainted by the discussion at trial
18:17
Speaker 1: of statements he made while he, was president and his
18:21
Speaker 1: lawyers are contending that those are official acts for which
18:24
Speaker 1: he's immune under that twenty Twenty Four supreme court ruling
18:28
Speaker 1: that derailed criminal charges against him for trying to overturn
18:32
Speaker 1: his twenty twenty. Election laws so could these be viewed as?
18:36
Speaker 2: OFFICIAL acts i don't, think so because this particular issue
18:40
Speaker 2: arose before he, was president and, you know we Have
18:43
Speaker 2: the Clinton versus jones president that a president can't be
18:48
Speaker 2: sued for pre, presidential ACTS and i think the court
18:52
Speaker 2: is not inclined to second Guests the. Clinton PRESIDENT so
18:57
Speaker 2: i think that on that, round alone they would not.
19:01
Speaker 1: Rest for thanks, So much hallie appreciate your. Being Here
19:06
Speaker 1: That's Professor harold krent Of A Chicago kent College of
19:09
Speaker 1: law coming up next On The Bloomberg. Law SHOW the
19:13
Speaker 1: DCUs Attorney jeanine piro charged a former olympian with a
19:17
Speaker 1: felony over alleged vandalism Of The lincoln memorial. Reflecting pool
19:22
Speaker 1: but will the charges even survive? Until Trial I'm june
19:26
Speaker 1: grosso and you're Listening. TO bloomberg a THREE Time us
19:32
Speaker 1: olympian is now facing a felony charge over alleged vandalism
19:37
Speaker 1: Of The lincoln Memorial. Reflecting Pool, janeen PIRO the us ATTORNEY,
19:42
Speaker 1: for dc Claimed that david hearn harmed the.
19:45
Speaker 6: Pool intentionally this was a delivered act to damage the
19:50
Speaker 6: reflecting pool At The national mall that members Of The
19:55
Speaker 6: National park service actually have worked hard to restore and.
20:00
Speaker 1: Have witnessed hearne has said that at no point did, he, remove,
20:04
Speaker 1: ripped tear or damage any part of the reflecting pool's.
20:08
Speaker 1: Blue coating he said he briefly touched a chunk that
20:11
Speaker 1: was still attached to the side of, the pool then
20:14
Speaker 1: let go shortly after a park worker told. Him to
20:18
Speaker 1: at a, press conference Reporters asked Piero what hern allegedly
20:22
Speaker 1: used to damage? The pool did he have?
20:24
Speaker 3: Any tools or is it just a?
20:25
Speaker 6: Spare hands, right now we believe it's his, bare hands.
20:29
Speaker 6: Both hands so does that indicat.
20:30
Speaker 3: In your belief that it was probably damaged before or.
20:33
Speaker 6: Do you believe That, he oh he damaged, It.
20:35
Speaker 3: Further but do you believe it had already been.
20:37
Speaker 6: Damaged before he damaged?
20:39
Speaker 1: THE pool i guess his former Federal Prosecutor, marissa darden
20:43
Speaker 1: chair Of The White Collar government Investigations And Regulatory practice
20:47
Speaker 1: Group At. Benish, law marissa even If what piero says,
20:51
Speaker 1: is true does that merit a? Felony indictment so.
20:55
Speaker 7: A couple of things that we should, talk about just
20:57
Speaker 7: the kind of levels AT The Us attorney's office For
20:59
Speaker 7: the District of columbia has concurrent jurisdiction between crimes that
21:05
Speaker 7: happen In the District of columbia That violate District of
21:09
Speaker 7: columbia law and federal laws.
21:12
Speaker 4: That are violated Within the District.
21:13
Speaker 7: Of columbia so there's Like the Department of justice writ,
21:16
Speaker 7: large right AND The Us attorney's office For the District.
21:19
Speaker 7: Of columbia they prosecute federal felonies and.
21:23
Speaker 4: Misdemeanors and state or.
21:25
Speaker 7: Local crimes so he's charged WITH Violating Dc code section
21:32
Speaker 7: twenty two three, oh three which is not a federal
21:35
Speaker 7: crime and not a. Federal felony and so on, one
21:38
Speaker 7: hand You Know, jeanie parrot love her rhetoric, or whatever
21:43
Speaker 7: and her interesting career before she WAS The us attorney
21:46
Speaker 7: For the District, of columbia like she's dialing it up
21:49
Speaker 7: in that, press conference no doubt. About it and one
21:51
Speaker 7: of the ways that you know that they're trying to
21:54
Speaker 7: be intellectually honest about the crimes that they're actually prosecuting
21:59
Speaker 7: day to day is that they charged him WITH violating
22:02
Speaker 7: dc law and not, federal law which they might have
22:06
Speaker 7: been able to do given the fact that it's a
22:08
Speaker 7: federal monument And The United States park service.
22:11
Speaker 4: Has jurisdiction, So, yes june on, ONE.
22:15
Speaker 7: Hand, i agree there's no need to get up there
22:17
Speaker 7: and like rant, about that but that might be Performative
22:21
Speaker 7: For president trump or. Other constituencies the way you know
22:25
Speaker 7: that they're trying to be intellectually honest about this crime
22:27
Speaker 7: is that they've charged him with a FELONY Violating dc.
22:30
Speaker 1: Code explain why, that matters because.
22:33
Speaker 8: If he's still there are judges In the District of
22:36
Speaker 8: columbia That are District of, columbia judges so just Like
22:40
Speaker 8: the City Of new York or chicago, has judges and
22:44
Speaker 8: so their docket is.
22:46
Speaker 7: Very full felonies are often handled by settling the cases.
22:52
Speaker 4: For lower charges than what was.
22:54
Speaker 7: Actually charged the dockets are, very busy, and ultimately, you
22:59
Speaker 7: KNOW The Us attorney's office will be responsible for prosecuting,
23:03
Speaker 7: those crimes but there are a host of other ways
23:05
Speaker 7: that they can be resolved that are outside of the
23:08
Speaker 7: federal system IN The Us, attorney's office EVEN in dc
23:11
Speaker 7: that handles. Federal crimes once you're indicted by a federal,
23:15
Speaker 7: grand jury there's a lot less options available to you
23:19
Speaker 7: in how you resolve. The Matter so i'm not suggesting
23:22
Speaker 7: that they're going to plea bargain this down to something
23:24
Speaker 7: less than. A felony and there may be political or
23:27
Speaker 7: other reasons why they decided to make the charges that.
23:29
Speaker 7: THEY did i don't speak, to that but just from
23:32
Speaker 7: like a, volume size the folks who work AT The
23:35
Speaker 7: Us attorney's office ON The dc district, court side they have.
23:38
Speaker 7: Full dockets they're. Very busy the judges. Are busy they're
23:42
Speaker 7: just like any other big city courtroom where that things
23:45
Speaker 7: get pled down to and.
23:46
Speaker 1: So forth so he was initially arrested on a. Misdemeanor
23:51
Speaker 1: charge is it often that it would be bumped up to?
23:55
Speaker 1: A felony sometimes that's.
23:58
Speaker 7: Not UNCOMMON so i was a state court prosecutor At
24:01
Speaker 7: The Manhattan. DAY'S office i was a federal prosecutor AT
24:04
Speaker 7: A us attorney's, office locally and there have definitely been
24:08
Speaker 7: Cases that i've Experienced that i've handled where it came
24:11
Speaker 7: in as one crime and it got charged as another
24:13
Speaker 7: as the investigation. Went on and so, you know again
24:17
Speaker 7: there are parts and pieces of this that may in fact.
24:20
Speaker 4: BE political i don't. Question that but just from like a.
24:24
Speaker 7: Day to day, prosecuting side The Assistant United states attorney
24:28
Speaker 7: who's responsible for handling this case would have a process
24:31
Speaker 7: just by.
24:31
Speaker 4: Which they would evaluate any.
24:32
Speaker 7: Other arrest they would speak to the, police officers try
24:36
Speaker 7: to ascertain exactly what, happened here review, the facts and
24:40
Speaker 7: determine how the facts apply to the law and what.
24:43
Speaker 4: Might be the.
24:44
Speaker 7: Appropriate charges my understanding is That The justice department now
24:48
Speaker 7: is operating under.
24:49
Speaker 4: A general understanding or a memo or.
24:52
Speaker 7: A credo that they're supposed to put the maximum charges
24:55
Speaker 7: allowable or possible on criminal defendants, in most if not.
24:59
Speaker 7: All cases and so it would be consistent with that
25:02
Speaker 7: edict that they might arrest him with a misdemeanor citation
25:06
Speaker 7: and then investigate the case and determine that it violated
25:09
Speaker 7: a FELONY under.
25:10
Speaker 1: Dc code this reminds me a lot of another Case
25:15
Speaker 1: where pierro called a, press conference and that was for
25:19
Speaker 1: the guy who's now known as the sandwich guy who
25:22
Speaker 1: threw a sandwich in the face of a ice agent,
25:25
Speaker 1: last year and the grand jury refused to indict him for.
25:29
Speaker 1: A felony he was ultimately charged with a misdemeanor assault
25:33
Speaker 1: and acquitted. At trial and, you KNOW the dc grand
25:38
Speaker 1: jury also refused to indict lawmakers who issued a video
25:42
Speaker 1: statement telling soldiers they could refuse to obey. Illegal ORDERS
25:47
Speaker 1: so i questioned how that grand jury returned a. Felony
25:51
Speaker 1: here it's hard.
25:53
Speaker 7: TO know, i mean grand juries are made up of
25:55
Speaker 7: people just like YOU. And i usually somewhere between seventeen
25:58
Speaker 7: and twenty three people there are provided evidence that the
26:01
Speaker 7: prosecutor dictates they want the grand jury. To hear, you
26:05
Speaker 7: know there's a reason why the stereotype is you can
26:07
Speaker 7: indict A ham. Sandwich right that the prosecutor's office has
26:11
Speaker 7: relatively full control over the witnesses that are brought in
26:15
Speaker 7: before the grand jury and the information that they're provided
26:18
Speaker 7: in order to return.
26:20
Speaker 4: An indictment and.
26:21
Speaker 7: That's not me saying that there was any funny. BUSINESS
26:23
Speaker 7: here i don't speak, to That but i'm just saying
26:26
Speaker 7: that the prosecutors would have clearly been able to control.
26:30
Speaker 1: That narrative can a judge before trial either throw the
26:35
Speaker 1: case out or lower the charges to a misdemeanor.
26:39
Speaker 4: Upon motion from one or. Both, sides.
26:42
Speaker 1: Absolutely yes he's got some well known defense attorneys and
26:45
Speaker 1: they've issued a statement that this indictment represents the administration's
26:50
Speaker 1: efforts to shift blame for their. Own failures there's been
26:54
Speaker 1: a lot of press about the Problems after trump's renovation
26:58
Speaker 1: of the reflecting so you can bet that they'll make
27:02
Speaker 1: emotion and.
27:03
Speaker 7: So oh absolutely and make several motions that this might be,
27:07
Speaker 7: a persecution that, it's unwarranted that, the facts, you know
27:11
Speaker 7: how they've been laid out either in the.
27:13
Speaker 4: Press conference or in.
27:14
Speaker 7: The indictment there's a host of factual and legal arguments
27:18
Speaker 7: that the defense is going to mount to say exactly what,
27:20
Speaker 7: you're saying, which is you know that this is there
27:22
Speaker 7: may be a political reason, for this that if he
27:25
Speaker 7: was simply just, you know in the, reflecting pool that
27:28
Speaker 7: he didn't mean anything, by it that there was. No malintent,
27:31
Speaker 7: you know the felony does come with a what we
27:34
Speaker 7: call a mens rea or some level of, intentional action
27:37
Speaker 7: and so if they can't, prove that that would be
27:40
Speaker 7: a very difficult case. To mount and the judge certainly
27:43
Speaker 7: has the authority to review those charges and make changes,
27:46
Speaker 7: or dismiscounts or do a host of other things to
27:50
Speaker 7: try to address those issues as they're.
27:52
Speaker 1: Brought up do you have a feel for whether a
27:54
Speaker 1: judge would at least knock this down to. A misdemeanor,
27:59
Speaker 1: i don't if for no.
28:00
Speaker 7: Other reason then on, one, hand yes the rhetoric is
28:03
Speaker 7: high and the political nature of it. Feels icky but
28:06
Speaker 7: on the, other hand in any, other administration, you, know,
28:10
Speaker 7: defaming defiling or otherwise like vandalizing federal monuments would be
28:15
Speaker 7: treated as a pretty. Serious, crime so, you know it
28:18
Speaker 7: depends on what the facts are.
28:20
Speaker 1: Some of the reporters brought up during the, press Conference
28:23
Speaker 1: which piro did not take kindly to whether similar charges
28:26
Speaker 1: could Face the january sixth defendants or The former january
28:30
Speaker 1: sixth defendants who cause damage To the. Capital complex could
28:34
Speaker 1: the defense bring that up or is it?
28:36
Speaker 9: TOTALLY irrelevant a good defense attorney might be able to
28:40
Speaker 9: fashion an argument that there is a potentially political play
28:45
Speaker 9: here that isn't consistent with how the administration has been
28:49
Speaker 9: handling similarly, Situated defendants that isn't often persuasive to, a
28:54
Speaker 9: judge if for no, other reason.
28:55
Speaker 7: Then the judges are supposed to evaluate the facts as
28:58
Speaker 7: they are laid out to them on.
28:59
Speaker 1: Individual, Basis also piro said her office is reviewing a
29:03
Speaker 1: half dozen other cases relating to, alleged damage but she
29:07
Speaker 1: expected some of those to result in.
29:09
Speaker 7: MISDEMEANOR charges, i MEAN The dc code section twenty three
29:13
Speaker 7: to three, oh three it has a misdemeanor provision. In
29:15
Speaker 7: it so it's possible that there are some facts that are,
29:18
Speaker 7: more aggressive or the vandalism is worth more more than one,
29:22
Speaker 7: thousand dollars or, you know there's a host of other
29:25
Speaker 7: factual considerations that the prosecutor's office would look at to
29:27
Speaker 7: determine whether it would be appropriate to charge somebody under
29:30
Speaker 7: a misdemeanor versus.
29:31
Speaker 1: A felony she claimed that herne did one thousand dollars.
29:34
Speaker 1: In damage when she was asked how she would, prove
29:37
Speaker 1: that she snapped at the reporter, and said with, an
29:40
Speaker 1: expert come to. The trial it's easy for a prosecutor,
29:43
Speaker 1: to say we'll do it, at trial but. The defendant
29:46
Speaker 1: maybe not, this defendant but most defendants then have to
29:49
Speaker 1: go through how much time waiting and paying an attorney
29:53
Speaker 1: and the angst of. All this it's not so easy for.
29:55
Speaker 1: The defendant and that's what happens in a lot of.
29:58
Speaker 7: These cases, Absolutely right and it is the sort of
30:02
Speaker 7: down cycle peril of our criminal justice system that you
30:06
Speaker 7: can mount the charges that you're not required to disclose
30:11
Speaker 7: at the time of the charging document exactly how or
30:15
Speaker 7: what evidence you will use to prove each and every
30:18
Speaker 7: element of a crime beyond a. Reasonable doubt hopefully that
30:21
Speaker 7: information will come out in discovery and as part of
30:25
Speaker 7: the litigation of.
30:26
Speaker 4: The case but she's.
30:28
Speaker 7: TECHNICALLY right, i mean if they need to prove that it's,
30:30
Speaker 7: a felony that the damages are worth more than one.
30:33
Speaker 7: THOUSAND dollars i would expect there to be some expert
30:35
Speaker 7: testimony or expert report about that that would come up
30:38
Speaker 7: as part of the.
30:39
Speaker 1: Discovery process we'll have to keep track of this as it.
30:41
Speaker 1: Goes along thanks so much for joining, Me. Again Marissa
30:45
Speaker 1: That's marissa Darden Of. Benish law and that's it for
30:48
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