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Weekend Law: Tupac Trial, Special Grand Jury & Administration Not Obeying Judges · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.
0:22
Speaker 2: Tupac Shakur is a cultural icon, considered one of the
0:26
Speaker 2: most influential and versatile rappers of all time. Despite dying
0:31
Speaker 2: at the age of twenty five in a drive by
0:35
Speaker 2: shooting in Las Vegas in nineteen ninety six.
0:38
Speaker 3: Tobaca is gunned down in a dry by shooting from
0:42
Speaker 3: a white Catalan in an act of revenge.
0:46
Speaker 2: His murder has been one of the biggest unsolved cases
0:50
Speaker 2: of our time, and now three decades later, Dwayne Keefey
0:54
Speaker 2: D Davis is on trial for orchestrating Shakur's murder. Prosecutor
0:59
Speaker 2: Banu Pou described Davis as the mastermind behind the shooting.
1:04
Speaker 3: Dwayne Davis did not pull the truck, but what he
1:08
Speaker 3: did do was planned the retaliation for the beating of
1:13
Speaker 3: his nephew. You will learn that DWAYN Davis got the gun.
1:19
Speaker 3: You will learn that he got into a white Cadillac.
1:23
Speaker 3: You will learn what the opportunity presented itself for retribution.
1:28
Speaker 3: Dwayne Davis made sure that the shooters armed and read
1:34
Speaker 3: to execute their way.
1:36
Speaker 2: Perhaps the strongest evidence in the prosecution's case is Davis's
1:41
Speaker 2: own words. For years, the former gang leader actually boasted
1:46
Speaker 2: about his involvement in the shooting, laying out the details
1:49
Speaker 2: in multiple interviews with police and the FBI, and then
1:53
Speaker 2: in a memoir in twenty nineteen. Prosecutors played Davis's confession
1:59
Speaker 2: from an interview you with l A. P. D In
2:02
Speaker 2: two thousand and eight, where he describes his car pulling
2:05
Speaker 2: alongside Shakur's car before the shooting.
2:08
Speaker 4: I thought he was going to pull a loss, not nothing,
2:11
Speaker 4: a little never long as to go.
2:12
Speaker 5: Well, you know, he pulled all on his line.
2:18
Speaker 4: So you were gonna you were fitting to blast if
2:19
Speaker 4: you had to, or you.
2:20
Speaker 5: Were just and we would have been on the loss
2:22
Speaker 5: all the blood. Okay, So you hand the gun to
2:25
Speaker 5: the backseat. Yeah you can hear Lane, I gave it
2:28
Speaker 5: to Dre. Dray was like oh no, and Lane like
2:31
Speaker 5: you pop?
2:33
Speaker 4: How do you rather?
2:34
Speaker 5: You say? He shout in the two block in the
2:35
Speaker 5: car if you had to push six or.
2:38
Speaker 2: Seven fift But in an unusual posture, the defense attorney,
2:42
Speaker 2: Michael Sandfitt, told the jurors that his client was not
2:46
Speaker 2: to be believed.
2:47
Speaker 3: Just look at the actual facts.
2:49
Speaker 5: What facts do you have to support any of what
2:52
Speaker 5: Ed said. Eddie's and aviews are in the book.
2:55
Speaker 2: There's one person who thinks Davis will have a hard
2:58
Speaker 2: time convincing the jury, and that Suge Knight, who was
3:02
Speaker 2: in the car with Tupac. As he told ABC News
3:06
Speaker 2: in an interview from prison.
3:08
Speaker 1: Everything he's said, he talked about the every tone moment,
3:11
Speaker 1: chef say what are you going to do?
3:13
Speaker 6: He raised artoy cording through the interviews he did, the sixty.
3:17
Speaker 2: Three year old Davis faces life in prison if he's
3:20
Speaker 2: convicted of the murder. My guest is former federal prosecutor
3:24
Speaker 2: Nima Romani, President and co founder of West Coast Trial Lawyers.
3:29
Speaker 2: Nima start with the challenges of trying this thirty year
3:33
Speaker 2: old case where most of the people who were involved
3:36
Speaker 2: are no longer alive.
3:37
Speaker 7: It's very difficult to prosecute a case thirty years later,
3:41
Speaker 7: especially because everyone who was in Kifi D's vehicle is dead,
3:45
Speaker 7: many of them for gang related reasons. Really, the only
3:48
Speaker 7: percipient witness that we know so far as sug Knight,
3:51
Speaker 7: who of course was driving Tubax vehicle.
3:54
Speaker 5: But I think it's unlikely that he's.
3:57
Speaker 7: Going to testify in this case, and I iify either
4:00
Speaker 7: the shooter or even put Davis in the vehicle. The
4:04
Speaker 7: other issue is Tupac himself. The testimony that came out
4:08
Speaker 7: on the first day of trial was that he refused
4:11
Speaker 7: to snitch and identify the shooter, saying that he would
4:15
Speaker 7: take care of it himself. Of course, he succumbed to
4:17
Speaker 7: his injuries at the hospital and was unable to do so.
4:20
Speaker 2: Does it seem like the best evidence the prosecution has
4:24
Speaker 2: is Keefyd's own words, because he bragged about being involved
4:31
Speaker 2: in the killing many times over the years and wrote
4:34
Speaker 2: a memoir to that effect.
4:37
Speaker 7: I've never covered a case like this that's based almost
4:40
Speaker 7: entirely on the defense's own words.
4:42
Speaker 5: The opening statements were surrealed.
4:45
Speaker 7: You have the prosecution calling Davis a criminal mastermind, the
4:50
Speaker 7: shot caller of this gang, and then you have the
4:54
Speaker 7: defense on the other hand, trying to undermine their client's
4:57
Speaker 7: own credibility. They said he was full of crap, They
5:00
Speaker 7: said this was all bs. They essentially were arguing that
5:04
Speaker 7: he's a fool who was bragging to make himselves seem
5:08
Speaker 7: more important, gain street cred in the game culture and
5:11
Speaker 7: to sell books.
5:13
Speaker 5: I've never seen anything like it, and at.
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Speaker 2: This point, the defense is claiming that there's no evidence
5:18
Speaker 2: that Davis was even in Las Vegas that night.
5:23
Speaker 5: This was a really important point.
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Speaker 7: So Davis has said that he wasn't even in Vegas
5:28
Speaker 7: in interviews he's done from jail with local media outlets
5:32
Speaker 7: in Vegas. But during opening statements, the defense said that
5:36
Speaker 7: Davis lied about being ringside or close to it in
5:40
Speaker 7: the Mike Tyson fight.
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Speaker 5: He wasn't even there. He wasn't at the fight.
5:43
Speaker 7: He wasn't in the city, which would be absolutely.
5:48
Speaker 5: Devastating to the prosecution's case. If that's true.
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Speaker 7: They need witnesses to at least put him in Vegas
5:55
Speaker 7: and Clark County, otherwise they're going to have significant problems.
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Speaker 2: He did many inters over the years admitting his role
6:02
Speaker 2: in the shooting, with the FBI, with Las Vegas Police,
6:07
Speaker 2: with LAPD. Are the jurors going to be asking, with
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Speaker 2: all these confessions, why did it take until twenty twenty
6:14
Speaker 2: three to arrest him.
6:16
Speaker 5: That's one of the best arguments the defense has.
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Speaker 7: They're arguing that even LAPD, even the FBI, they didn't
6:23
Speaker 7: believe Davis.
6:24
Speaker 5: That's why they didn't charge him.
6:26
Speaker 7: And you're right, we're talking about going back to I
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Speaker 7: think nineteen ninety seven was his first interview with LAPD
6:32
Speaker 7: after Biggie Smalls was killed outside the Peterson Auto Museum
6:36
Speaker 7: in Los Angeles. Of course, there's the infamous two thousand
6:39
Speaker 7: and eight interview with the Federal Task Force that became
6:43
Speaker 7: the issue of much litigation. He was given immunity. The
6:47
Speaker 7: prosecution argued that it was just use immunity. It didn't
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Speaker 7: bind other jurisdictions, including Nevada. This was litigated all the
6:55
Speaker 7: way to the Nevada Supreme Court, where the defense argued
6:59
Speaker 7: that it was transaction actual immunity.
7:00
Speaker 5: He's going to be prosecuted at all.
7:02
Speaker 7: Ultimately, the judge agreed with the prosecution that one jurisdiction
7:07
Speaker 7: cannot contractually bind another. And I think that two thousand
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Speaker 7: and eight interview, as well as the twenty nineteen memoir,
7:14
Speaker 7: I think those are the most damning pieces of evidence
7:18
Speaker 7: for Davis and the defense.
7:20
Speaker 2: What do you think about the defense saying, oh, he
7:22
Speaker 2: was bragging in an interviews, Davis has said, you know,
7:25
Speaker 2: he was trying to make some money off.
7:27
Speaker 5: This certainly possible.
7:29
Speaker 7: The prosecution is going to need to corroborate these admissions
7:33
Speaker 7: or confessions with some independent evidence. It's going to be
7:36
Speaker 7: very hard when you have the defendant now arguing that
7:39
Speaker 7: he was trying to sell books and seem more important.
7:41
Speaker 7: And ultimately, I think at a minimum, they got to
7:44
Speaker 7: put them in the vehicle, And the question is do
7:47
Speaker 7: they have the witnesses to do so. Their witnesses are
7:50
Speaker 7: going to testify about this white catilloc that pulled up
7:53
Speaker 7: next to a BMW. But the challenge, and like you said,
7:56
Speaker 7: is all the precipient witnesses to the.
8:00
Speaker 5: Shooting, they're all dead.
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Speaker 7: They can't testify, And of course under the rules of
8:05
Speaker 7: hearsay and the confrontation clause of the Constitution, and accused
8:09
Speaker 7: has the right to cross examine his accuser form.
8:11
Speaker 2: Also, they don't have the gun, they don't have the car.
8:15
Speaker 2: I don't know if they have any physical evidence at all.
8:19
Speaker 5: That's the concern.
8:19
Speaker 7: You're normally in a murder case, you're gonna have ballistics,
8:22
Speaker 7: you're gonna have DNA, you're gonna have fingerprints. We don't
8:24
Speaker 7: have any of that south side evidence, So you're relying
8:28
Speaker 7: on these admissions. So obviously there's a potential motive. I
8:32
Speaker 7: think we're gonna hear a lot of testimony about the
8:36
Speaker 7: beef between these gangs. And one other interesting wrinkle is
8:41
Speaker 7: that that may be helpful for the defense, is that
8:43
Speaker 7: Davis previously said that shand D. Combs offered him a
8:46
Speaker 7: million dollars to kill Tupac. Now, of course Combs is
8:51
Speaker 7: denying that Colmes isn't gonna come anywhere near this trial.
8:54
Speaker 7: Like Suge Knight, he has his own legal problems. But
8:56
Speaker 7: if that statement is also untrue, it's sort of leads
9:00
Speaker 7: to the conclusion that this is all just a complete
9:04
Speaker 7: fabrication by someone that had nothing to do with it.
9:08
Speaker 7: The more elaborate the lies and the Comb's part being
9:11
Speaker 7: one of them, the better it is for the defense. Again,
9:15
Speaker 7: it's really bizarre that they're just trying to undermine their
9:19
Speaker 7: own client's credibility. I've never seen anything like this in
9:23
Speaker 7: any case. So that's why that independent, corroborating evidence is
9:27
Speaker 7: going to be critical for the state.
9:28
Speaker 2: The defense attorney is also pointing to missing documents. He
9:32
Speaker 2: called Las Vegas police incompetent and said their work was
9:37
Speaker 2: biased and sloppy, and even accused the LAPD of being corrupt.
9:42
Speaker 2: I mean, those are all arguments we've heard from defense
9:45
Speaker 2: attorneys many, many times.
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Speaker 7: That's the challenge when you have these types of cases.
9:49
Speaker 7: Because I live and work in Los Angeles and I
9:53
Speaker 7: was here in the nineties, and obviously this is not
9:56
Speaker 7: a Los Angeles case, but there's a perception there was
10:00
Speaker 7: that LAPD was corrupted during that time, Rampart, Rodney King,
10:06
Speaker 7: the failure to ever arrest anyone for the Tupac or
10:09
Speaker 7: Biggie murders. There are a lot of people who believe
10:12
Speaker 7: that law enforcement were complicit. It was bad Boy. So
10:16
Speaker 7: the challenge is when you have a thirty year old case.
10:19
Speaker 7: I'm not saying everyone is of age to remember when
10:23
Speaker 7: Tupac was killed, but some of these jurors have very
10:26
Speaker 7: strong preconceived notions as to who was responsible for Tupac's death.
10:33
Speaker 5: That becomes a challenge.
10:34
Speaker 7: And there are other cases as well where this has
10:37
Speaker 7: been an issue. I think a recent example, not a
10:39
Speaker 7: murder case, but the fire case here in Los Angeles
10:42
Speaker 7: where I live. Jonathan render connect He was charged for arson,
10:46
Speaker 7: but that was after many, many months. When people believe
10:49
Speaker 7: that the LA Fire Department, the LA Department of Water
10:52
Speaker 7: and Power, mayor Karen Bass, Mother Nature, They're all responsible
10:55
Speaker 7: for the devastating Malibu and Palisades fire. Then the US
10:59
Speaker 7: Attorney's office charges this arsonist and ultimately the jury hung
11:04
Speaker 7: tend to in favor of acquittal, and one of the
11:07
Speaker 7: jurors that spoke out and said, no, this wasn't his fault.
11:10
Speaker 5: He's being scapegoaded.
11:11
Speaker 7: So I think the defense has an argument here that
11:14
Speaker 7: it was law enforcement that failed to do their job.
11:17
Speaker 7: And by the way, this is not the defense lawyers
11:18
Speaker 7: argue in almost every case. Right, a poor, sloppy investigation,
11:23
Speaker 7: and the fact that it took thirty years to bring
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Speaker 7: any criminal charges against one of or actually who I
11:29
Speaker 7: believe is the greatest rapper of all time being murdered
11:32
Speaker 7: does play into that Argumentine, do you.
11:34
Speaker 2: Think there's a chance that the defendant might take the
11:37
Speaker 2: stand because does the jury believe what he's been saying
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Speaker 2: over thirty years or do they believe what he's saying now.
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Speaker 7: I think if I'm the defense, I do not, under
11:49
Speaker 7: any circumstances put Davis on the stand.
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Speaker 5: Here's someone that is.
11:53
Speaker 7: Going to be completely destroyed on cross examination, and maybe
11:56
Speaker 7: you want him to be destroyed because you want him
11:58
Speaker 7: to just look so incompetent.
12:01
Speaker 5: You want him to be a bumbling fool.
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Speaker 7: So maybe it would be a mad genius move, but
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Speaker 7: it's very, very risky for this type of defendant. He's
12:11
Speaker 7: obviously opened his mouth many many times when.
12:13
Speaker 5: He should not have.
12:14
Speaker 7: Even when he was in jail he was talking to reporters, right,
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Speaker 7: It is risky, and if I were the defense here,
12:21
Speaker 7: I would kind of stick with what I got, which
12:23
Speaker 7: is really reasonable doubt because the prosecution is at a
12:26
Speaker 7: disadvantage because so much time has passed and most of
12:29
Speaker 7: the witnesses are dead, a.
12:30
Speaker 2: Lot more to come. The trials expected to last into September.
12:34
Speaker 2: Thanks for those insights, Nima. That's Nima Romani, president of
12:38
Speaker 2: West Coast Trial Lawyers. Coming up next, Why has dc
12:42
Speaker 2: US Attorney Janine Piro convened a special grand jury? I'm
12:46
Speaker 2: June Grosso and you're listening to Bloomberg. President Trump made
12:51
Speaker 2: it very clear that he was not happy with DCUs
12:55
Speaker 2: attorney Jeanine Piro about three weeks ago.
12:58
Speaker 4: I was disappointed with Jennie Peerrou really disappointed with Jennie Peer.
13:03
Speaker 3: She folded like an umbrella.
13:07
Speaker 2: That disappointment was the result of Piero dropping felony charges
13:11
Speaker 2: against a former olympian for allegedly vandalizing the reflecting pool.
13:17
Speaker 2: But there have been other high profile failures for Piero's office.
13:22
Speaker 1: Our laws are clear. You can refuse illegal orders.
13:25
Speaker 8: You can refuse illegal orders.
13:28
Speaker 1: You must refuse illegal orders.
13:30
Speaker 2: A grand jury refusing to indict six Democratic lawmakers who
13:35
Speaker 2: released a video advising service members they must refuse to
13:39
Speaker 2: follow illegal orders. Jerome Powell today is now bathed in immunity,
13:47
Speaker 2: preventing my office from investigating the Federal Reserve. A federal
13:53
Speaker 2: judge quashing grand jury subpoenas for former Fed Reserve Chair
13:57
Speaker 2: Jerome Powell, blasting the DC US Attorney's office for producing
14:03
Speaker 2: essentially zero evidence to suspect Powell of a crime.
14:07
Speaker 3: And then he took a subway sandwich about this big
14:10
Speaker 3: and took it and threw it at the officer.
14:13
Speaker 5: He thought it was funny.
14:15
Speaker 6: Well, he doesn't think it's funny today, because we charged
14:17
Speaker 6: it with a felony assault on a police officer.
14:20
Speaker 2: But again, a grand jury refused to indict the man
14:23
Speaker 2: accused of throwing a subway sandwich at an ice officer
14:27
Speaker 2: of a felony, and a trial jury acquitted him of
14:31
Speaker 2: even the lowered misdemeanor charges. In light of these very
14:35
Speaker 2: public failures, the news, first reported by The Washington Post,
14:40
Speaker 2: that Pierro has convened a rare special grand jury, has
14:44
Speaker 2: raised concerns about her intentions. Joining me is Barbara McQuaid,
14:49
Speaker 2: a professor at the University of Michigan Law School and
14:52
Speaker 2: the former US Attorney for the Eastern District of Michigan.
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Speaker 2: Barb how unusual is it for a US Attorney's office
15:00
Speaker 2: to convene a special grand jury?
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Speaker 6: In many districts, It's not unusual at all. In fact,
15:06
Speaker 6: in districts with a population of more than four million people,
15:10
Speaker 6: it's mandatory that there be a special grand jury. The
15:13
Speaker 6: District of Columbia has a population below four million, and
15:16
Speaker 6: although it conducts long term investigations, which is the purpose
15:19
Speaker 6: of a special grand jury, it's rarely done in DC.
15:22
Speaker 6: So this is unusual, which is why I think it
15:24
Speaker 6: has caught the attention of many observers.
15:27
Speaker 2: Tell us about the difference between a regular grand jury
15:30
Speaker 2: and a special grand jury.
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Speaker 6: In my former district, for example, the Eastern District of Michigan,
15:34
Speaker 6: we always had a special grand jury that was ongoing.
15:37
Speaker 6: So a regular grand jury sits for six months, so
15:40
Speaker 6: they hear shortcases a one count bank robbery, a one
15:44
Speaker 6: count felon in possession case, where the evidence can be
15:46
Speaker 6: presented all in one sitting or maybe over just a
15:49
Speaker 6: couple of weeks, and the grand jury sort of hurt
15:51
Speaker 6: all they need to hear and is ready to make
15:53
Speaker 6: a decision to either return or decline to return an indictment.
15:56
Speaker 6: A special grand jury sits for eighteen months, and so
15:59
Speaker 6: that allow allows them to participate in longer term investigations.
16:03
Speaker 6: They were originally created for organized crime investigations, so if
16:06
Speaker 6: you're investigating a mob case, it might be that you
16:09
Speaker 6: need to first use the grand jury to obtain lots
16:11
Speaker 6: of documents. Once you get those, maybe you need to
16:14
Speaker 6: bring in a witness or a cooperating witness and compel
16:16
Speaker 6: them to testify, and based on the information you get there,
16:19
Speaker 6: one step leads to another, and it can take many
16:22
Speaker 6: many months to put together one of those cases.
16:24
Speaker 8: It can also be extended to up to thirty six.
16:26
Speaker 6: Months for longer cases, and since they began in the
16:30
Speaker 6: late nineteen sixties, they've now been expanded to public corruption cases,
16:34
Speaker 6: national security cases, any case that might take longer than
16:37
Speaker 6: six months to complete.
16:39
Speaker 8: That's the purpose of them in other districts.
16:41
Speaker 2: Suppose they want to investigate Jerome Powell again, since those
16:45
Speaker 2: investigative subpoenas were quashed, would that be enough to convene
16:50
Speaker 2: a special grand jury or does it have to be
16:53
Speaker 2: more than that, Let's say, a series of cases investigating
16:56
Speaker 2: public officials, something bigger than just the investmentstigation of one person.
17:02
Speaker 8: It usually is. So I don't know.
17:04
Speaker 6: I think one of the reasons people have pointed to
17:06
Speaker 6: Jerome Powell is because the attorney assigned to the case
17:09
Speaker 6: is Stephen van der Velden, and he is someone who
17:12
Speaker 6: was assigned to the Jerome Powell investigation. He is also
17:16
Speaker 6: assigned to the case that attempted to indict the six
17:20
Speaker 6: members of Congress for participating in a video where they
17:24
Speaker 6: simply restated accurately the law of the duty of military
17:27
Speaker 6: members to refuse an illegal order.
17:29
Speaker 8: And so I think because of his role.
17:31
Speaker 6: He also spent thirty four years in the Westchester County
17:35
Speaker 6: District Attorney's office, working for in part, Janine purou So.
17:39
Speaker 8: She brought him on board.
17:40
Speaker 6: She has spoken very highly of his skills as a
17:42
Speaker 6: prosecutor and investigator and seems to be a real puro loyalist,
17:46
Speaker 6: and so I think that's another reason that people are
17:49
Speaker 6: concerned about this. And so it seems like what you
17:52
Speaker 6: would convene this for would be a larger, longer term investigation.
17:56
Speaker 6: They're sometimes referred to by prosecutors as enterprise investigation because
18:00
Speaker 6: you might be looking at organized criminal activity with more
18:03
Speaker 6: than just one participant. If you thought you could indict
18:06
Speaker 6: a case in six months on just a single individual
18:09
Speaker 6: with a single counter one scheme, it probably would be unnecessary.
18:13
Speaker 8: To convene a special grand jury.
18:15
Speaker 6: So this strikes me as a larger enterprise investigation most likely.
18:19
Speaker 6: You know, we've been reading about what do they call it,
18:21
Speaker 6: the Grand Conspiracy investigation.
18:22
Speaker 8: It's occurring in Florida.
18:24
Speaker 6: It would seem this would be the kind of thing
18:27
Speaker 6: you might expect a special grand jury to be convened for.
18:31
Speaker 2: Janine Piro's office hasn't come close to delivering on what
18:36
Speaker 2: the president wants. She came close to being fired. Could
18:40
Speaker 2: she be reinvestigating some of the fail cases, for example,
18:44
Speaker 2: against the six Democratic lawmakers over that video.
18:48
Speaker 6: It's quite possible. You know, we really don't know what
18:50
Speaker 6: this is. By their nature, grand juries are secret, and
18:53
Speaker 6: for good reason. The idea is you don't want to
18:56
Speaker 6: compromise an investigation by announcing to the world that you're investigating.
19:00
Speaker 6: It could cause people to destroy documents or tamper with witnesses,
19:04
Speaker 6: or flee or otherwise compromise an investigation, and even harm
19:08
Speaker 6: the reputation of the person under investigation if it should
19:11
Speaker 6: turn out that no charges are ever filed.
19:14
Speaker 8: So we may not know, but.
19:16
Speaker 6: Oftentimes hints spill out because witnesses and their lawyers start
19:20
Speaker 6: talking to the press. They want to be able to
19:22
Speaker 6: sort of tell their side of the story in the
19:24
Speaker 6: court of public opinion, and so for that reason sometimes
19:28
Speaker 6: we see these leaks. Sometimes people suspect that it's members
19:31
Speaker 6: of the grand jury or the court or the prosecutors.
19:33
Speaker 8: Who are leaking.
19:34
Speaker 6: In my experience, it's usually the lawyer for someone who's
19:38
Speaker 6: been called before the grand jury, because they want to
19:40
Speaker 6: make it clear that they're a witness and not a
19:42
Speaker 6: target of the grand jury and be the first to
19:44
Speaker 6: kind of tell their story.
19:46
Speaker 8: So we don't know.
19:47
Speaker 6: It is possible that they're reviewing some of these prior cases,
19:50
Speaker 6: could be something completely different, could be preparing for some
19:54
Speaker 6: criminal investigation relating to the upcoming elections.
19:56
Speaker 8: I don't know.
19:57
Speaker 6: The timing of it though, also concerns people because it
20:00
Speaker 6: comes right after Todd Blanche is confirmed and right after
20:04
Speaker 6: Janine Puro falls into disfavor for dismissing the case against
20:07
Speaker 6: David Hearn in the Reflecting Pool case. So I think,
20:11
Speaker 6: you know, some see it as an effort to make
20:13
Speaker 6: good and please the president, but of course we really
20:15
Speaker 6: don't know exactly what's going on.
20:17
Speaker 2: Another concern some people have is because the special grand
20:20
Speaker 2: jury can issue a report at the end of the
20:23
Speaker 2: investigation even if the prosecutors don't bring charges against anyone
20:29
Speaker 2: in particular, So there could be a report out there
20:33
Speaker 2: on you, even though there wasn't enough evidence to bring
20:37
Speaker 2: charges against you, and even though you didn't have a
20:40
Speaker 2: chance to refute the charges at trial.
20:43
Speaker 6: Yes, and I think that is concerning as well, you know,
20:46
Speaker 6: if you're acting in good faith. Most often grand juries
20:49
Speaker 6: do not issue a report, but they could. They could
20:52
Speaker 6: issue something similar to what Robert Muller did at the
20:54
Speaker 6: conclusion of his investigation. Usually it's written by the prosecutor
20:58
Speaker 6: who is leading it in this case, Stephen vander Velden,
21:01
Speaker 6: to discuss what they found, even if it doesn't result
21:04
Speaker 6: in charges, So one could imagine this would be, in
21:06
Speaker 6: my opinion, and abuse of the process. But one could
21:09
Speaker 6: imagine an effort to bring some witnesses to testify based
21:13
Speaker 6: on some conspiracy theory.
21:14
Speaker 8: The grand jury ultimately declines to issue.
21:17
Speaker 6: Any charges, but a report gets issued that does dirty
21:20
Speaker 6: up somebody politically, So that would be another concern about
21:23
Speaker 6: an abuse here. But there's this long standing presumption of
21:27
Speaker 6: regularity when it comes to the Justice Department, that we
21:29
Speaker 6: assume good faith, we assume they are using their tools appropriately.
21:32
Speaker 6: But of course many judges have found just the opposite
21:35
Speaker 6: in this administration, So I think that's why people are concerned.
21:38
Speaker 2: And prosecutors only have to show that there's a preponderance
21:42
Speaker 2: of evidence of wrongdoing, so it's a really low standard
21:46
Speaker 2: to bring out one of these grand jury reports.
21:50
Speaker 6: Yes, a report would really just be you know, they
21:53
Speaker 6: were as I said, they were formed for the purpose
21:55
Speaker 6: of organized crime, and I think the idea was that
21:58
Speaker 6: even if you couldn't get an indictment against everybody, or
22:00
Speaker 6: maybe you did, you could give the district sort of
22:03
Speaker 6: a state of the district where you stand on organized crime,
22:08
Speaker 6: so that the public could be educated about something that
22:11
Speaker 6: was happening in the shadows, and I'm not sure I've
22:13
Speaker 6: ever seen one of these things, but they are authorized
22:16
Speaker 6: to do it, and so I suppose some of the
22:18
Speaker 6: concern is that even if there is insufficient evidence to
22:21
Speaker 6: bring a case, there could be this effort to dirty
22:24
Speaker 6: people up. Remember Ed Martin, he was somebody who was
22:27
Speaker 6: at one time the interim US Attorney in the District
22:29
Speaker 6: of Columbia. He then got appointed to be the head
22:33
Speaker 6: of the Weaponization Task Force and the head of the
22:37
Speaker 6: Office of the Pardon Attorney. I think he's still there
22:39
Speaker 6: as the Pardon Attorney, but he's become very quiet in
22:42
Speaker 6: recent days after his efforts to indict Letitia James that seemed.
22:45
Speaker 8: To fall apart.
22:46
Speaker 6: He said something really interesting when he first took on
22:49
Speaker 6: those roles, which was, we're going to name and shame
22:51
Speaker 6: people even if we don't have the evidence to convict them,
22:55
Speaker 6: because that's what the public cares about. That is a
22:57
Speaker 6: distortion of the Justice Department's mission, which is to bring
23:01
Speaker 6: cases only if you believe the evidence is sufficient to
23:04
Speaker 6: obtain and support a conviction on appeal. And so the
23:07
Speaker 6: idea that you would just use it for the purpose
23:09
Speaker 6: of naming and shaming seems like a violation of DOJ's
23:13
Speaker 6: policy guidelines, the principles of federal prosecution to avoid engaging
23:17
Speaker 6: in partisan politics. So I worry a little bit about
23:20
Speaker 6: that aspect of this, this ability to issue a report.
23:23
Speaker 2: Is there any protection in the fact that a judge
23:26
Speaker 2: has to decide that there is a preponderance of evidence
23:30
Speaker 2: of wrongdoing before signing off on the issuance of a
23:35
Speaker 2: report from the grand jury.
23:37
Speaker 6: Yes, I think that is a check. But of course
23:39
Speaker 6: a preponderance of the evidence is much less than the
23:42
Speaker 6: standard that prosecutors would use to bring an indictment, even
23:46
Speaker 6: though the grand jury may bring an indictment based only
23:49
Speaker 6: on probable cause, which is a level actually below preponderance
23:52
Speaker 6: of the evidence. Preponderence of the evidence is kind of
23:55
Speaker 6: fifty one percent. Probable cause doesn't have a number attached
23:58
Speaker 6: to it, but it just means real grounds to believe
24:01
Speaker 6: that a crime has been committed by this person, and
24:03
Speaker 6: so it's a lowish standard. But the principles of criminal
24:08
Speaker 6: prosecution say that a prosecutor should only seek an indictment
24:12
Speaker 6: if they believe they can prove the case beyond a
24:14
Speaker 6: reasonable doubt, that very highest standard, and so the a
24:17
Speaker 6: judgement will apply the law. They're not applying their opinion
24:20
Speaker 6: about whether they think this is a good thing or
24:22
Speaker 6: a bad thing. But if there's a proponent of the
24:24
Speaker 6: evidence fifty one percent, even if it could never be
24:27
Speaker 6: proved beyond a reasonable doubt, means that that could become
24:30
Speaker 6: public information. And so as a former prosecutor, I worry
24:33
Speaker 6: about that a little bit. Prosecutors are trained to be
24:36
Speaker 6: very circumspect with filing charges and to bring them only
24:40
Speaker 6: if they believe that the case can be proved beyond
24:43
Speaker 6: a reasonable doubt, because of the recognition of the awesome
24:46
Speaker 6: power of a prosecutor to ruin someone's life, not only
24:49
Speaker 6: to take away their liberty.
24:50
Speaker 8: But to take away their reputation.
24:52
Speaker 6: And I think a report could do just that without
24:55
Speaker 6: the other part of having evidence beyond a reasonable doubt.
24:59
Speaker 2: It seems like they're there's a lot to be concerned about.
25:02
Speaker 2: Thanks so much for joining me, barb. That's Professor Barbara
25:05
Speaker 2: McQuaid of the University of Michigan Law School. Her new
25:09
Speaker 2: book is called The Fix, Saving America from the Corruption
25:13
Speaker 2: of a mob style Government. The Trump administration is not
25:18
Speaker 2: complying with all court orders, and that's according to federal judges.
25:23
Speaker 2: It was less than three weeks into President Trump's second
25:27
Speaker 2: term that federal judges, like Washington States John Kunauer, took
25:32
Speaker 2: the president to task for ignoring the rule of law.
25:36
Speaker 4: It has become ever more apparent than to our president,
25:40
Speaker 4: the rule of law is but an impediment to his
25:44
Speaker 4: policy goals.
25:45
Speaker 2: More high profile examples followed, like the administration ignoring the
25:51
Speaker 2: order of the DC Chief Federal Judge to turn around
25:55
Speaker 2: two planes carrying Venezuelan migrants to prison in El Salvador
25:59
Speaker 2: in March of twenty twenty five. Judges are fielding more
26:03
Speaker 2: requests to force the administration to comply with their rulings
26:07
Speaker 2: against the federal government than in any other prior administration,
26:12
Speaker 2: including the first Trump administration. A new study by Bloomberg
26:17
Speaker 2: Law shows that judges have found the administration has not
26:20
Speaker 2: complied with their orders regarding motions to enforce preliminary injunctions
26:26
Speaker 2: in more than half of the twenty five cases identified.
26:29
Speaker 2: Bloomberg Law reporter Suzanne moniac crunched the numbers, so Suzanne, Ordinarily,
26:36
Speaker 2: a judge issues in order and the parties either comply
26:40
Speaker 2: or appeal the order, but tell us what's been happening
26:44
Speaker 2: with orders issued against the federal government during the Trump administration.
26:50
Speaker 9: We've seen some recent examples where the Trump administration has
26:53
Speaker 9: been at least accused of and in some cases found
26:55
Speaker 9: of not fully complying with these court orders. We looked
26:59
Speaker 9: at promotions to enforce preliminary injunctions, but I think it's
27:01
Speaker 9: an interesting example to look at because it shows a
27:04
Speaker 9: compliance issue really early in a case, A preliminary injunction
27:07
Speaker 9: would come down pretty soon after a lawsuit showing that
27:10
Speaker 9: the challenger was likely to win its case, and so
27:12
Speaker 9: then we're seeing the government, you know, immediately potentially not
27:15
Speaker 9: following that order. I think it's an interesting place to
27:17
Speaker 9: look attract two dozen examples at least of times when
27:21
Speaker 9: the Trump administration has been accused of not fully complying
27:24
Speaker 9: with initial preliminary injunction orders.
27:27
Speaker 2: What kind of cases are we talking about?
27:30
Speaker 4: All different types of cases against the government.
27:32
Speaker 9: We've seen them in big cases of our usaid funding cuts,
27:35
Speaker 9: the dismantling of international broadcaster Voice of America, other big
27:40
Speaker 9: cases across the country where there were early preliminary injunction
27:43
Speaker 9: orders granted against the administration telling them to stop doing
27:47
Speaker 9: something and then we saw the challengers come back into
27:49
Speaker 9: court and claim the administration wasn't fully following that order.
27:53
Speaker 9: And at fourteen of those twenty five instances the judge
27:55
Speaker 9: agreed either fully or partially. In a few other cases
27:58
Speaker 9: it was either denied, sometimes was resolved otherwise, or even mooted.
28:02
Speaker 9: Sometimes has the case just progressed past that stage, But
28:05
Speaker 9: fourteen out of twenty five was still somewhat of a
28:07
Speaker 9: striking number. For comparison, under the Biden administration, there were
28:10
Speaker 9: only two motions to enforce preliminary injunctions crowd against the government,
28:14
Speaker 9: and one of them was partially granted in a medicaid
28:16
Speaker 9: involved case. And during the first Trump of administration we
28:19
Speaker 9: saw eleven motions to enforce preliminary injunctions, about half of
28:23
Speaker 9: those partially or fully granted, so somewhat of a similar statistic,
28:26
Speaker 9: But I mean that was eleven over four years. We're
28:29
Speaker 9: looking at twenty five and a year and a half,
28:31
Speaker 9: so I think we can expect potentially this number to
28:33
Speaker 9: grow as a number of court challenges grow and as
28:36
Speaker 9: we see the administration kind of see.
28:38
Speaker 4: What you know, they're able to do with these court orders.
28:41
Speaker 2: There was a scathing opinion by a Reagan appointee in
28:44
Speaker 2: the Voice of America case, and in another case, a
28:48
Speaker 2: senior DC federal judge said that the Defense Department's actions
28:53
Speaker 2: flout the court's explicit directives. So these federal judges are
28:58
Speaker 2: not beating around the bush. How upset are the judges
29:01
Speaker 2: about this failure to comply with their explicit orders?
29:05
Speaker 9: In some cases, pretty upset, And obviously when it comes
29:08
Speaker 9: to judges, sometimes they're upset and they still write a
29:11
Speaker 9: pretty boring opinion.
29:12
Speaker 4: So it's hard to always know.
29:14
Speaker 9: But yes, as you mentioned in a couple of examples,
29:16
Speaker 9: the judges did in fact let us know that they
29:18
Speaker 9: weren't happy with the government's conduct. In that one instance
29:21
Speaker 9: you mentioned, Judge Lambert, or Reagan appointee in DC, when
29:24
Speaker 9: he was handling the Voice of America case, said that
29:27
Speaker 9: he thought the government was quote in violation of even
29:29
Speaker 9: the most meager reading end quote of his court order.
29:32
Speaker 9: So definitely not pleased. We've also seen plenty of orders
29:35
Speaker 9: where the judge is kind of very matter of factly
29:37
Speaker 9: as like, I don't see the government as having fully
29:38
Speaker 9: complied with this order.
29:40
Speaker 4: These are inconsistent.
29:41
Speaker 9: You know, you need to do this differently if you
29:43
Speaker 9: want to be in compliance with my order.
29:45
Speaker 2: A few judges wanted to take things further or did
29:48
Speaker 2: take things further. So in Minnesota you had the chief
29:52
Speaker 2: judge finding that ICE had violated nearly one hundred court orders.
29:57
Speaker 2: And then there was another federal judge in Minute, Minnesota
30:00
Speaker 2: who held a government lawyer in civil contempt, although that
30:04
Speaker 2: didn't last very long.
30:06
Speaker 9: Yes, in this story, I was tracking motions to enforce
30:08
Speaker 9: preliminary injunctions, but there have been a lot of different
30:10
Speaker 9: types of motions filed to force compliance with court orders
30:14
Speaker 9: against this administration. And in that one example you mentioned,
30:17
Speaker 9: we saw a Minnesota federal judge actually held a government
30:20
Speaker 9: lawyer briefly in civil contempt of court for not correctly
30:24
Speaker 9: facilitating the release of a detained immigrant. He was released
30:27
Speaker 9: in the wrong state without his property, and it came
30:30
Speaker 9: out that the lawyer hadn't forwarded the court's order to
30:33
Speaker 9: Ice on time, so there was just a full breakdown
30:35
Speaker 9: in communication. The lawyer actually you know, did apologize and
30:39
Speaker 9: set it up, just been really overwhelmed. But the judge
30:41
Speaker 9: had ordered essentially a financial penalty for every day that
30:45
Speaker 9: the detained immigrant you know, was not with his property,
30:48
Speaker 9: and the government did remedy it very quickly. I don't
30:50
Speaker 9: believe the government lawyer who was representing Ice did actually
30:53
Speaker 9: end up having to pay anything personally, but it was
30:55
Speaker 9: a pretty significant sanction to see against the government.
30:58
Speaker 2: So in these cases, this is the government is giving
31:02
Speaker 2: instructions about what the court said and what the agency
31:06
Speaker 2: supposed to do. Do you know, is it a lot
31:09
Speaker 2: of times that the government lawyers are screwing up or
31:12
Speaker 2: that the agency is just not complying.
31:15
Speaker 4: I think it's a mix.
31:16
Speaker 9: In the case I just mentioned in Minnesota, we've seen
31:19
Speaker 9: the government actually likes say like, look, we can't always
31:22
Speaker 9: be responsible for what the agency does. The Justice Department,
31:24
Speaker 9: of course, represents federal agencies in court, and so you know,
31:28
Speaker 9: that's really kind of an interesting question as we see
31:30
Speaker 9: some of these compliances issues come up in cases to
31:33
Speaker 9: what extent is the Justice Department responsible for a federal
31:36
Speaker 9: agency not fully following a court order or interpreting it
31:39
Speaker 9: too narrowly and you know, not complying in the full
31:42
Speaker 9: spirit of the order. I think that's an interesting question
31:44
Speaker 9: and one that we've seen come up already.
31:46
Speaker 2: One of the first and probably still most famous case
31:50
Speaker 2: is is where the chief judge in DC, Judge Boseburg,
31:55
Speaker 2: ordered the government when they were sending venezuel and immigrants
31:59
Speaker 2: to in El Salvador, to turn the planes around, and
32:03
Speaker 2: they didn't, and he wanted to have a criminal contempt investigation.
32:07
Speaker 9: But what happened the DC Circuit ruled against him on
32:11
Speaker 9: that issue and blocked a hearing from being held. Proceedings
32:15
Speaker 9: are still pending on that issue. But yes, that was
32:17
Speaker 9: probably one of the most famous issues of court compliance
32:20
Speaker 9: that have happened in this administration, and happened so early
32:22
Speaker 9: kind of set the tone perhaps for some of the
32:25
Speaker 9: issues to come. And in that case, we were talking
32:27
Speaker 9: about criminal contempt, which is a different form of contempt
32:30
Speaker 9: than we were discussing with the Minnesota lawyer that was
32:32
Speaker 9: civil contempt, so quite a bit more serious.
32:35
Speaker 2: Is this all a reflection of the Trump administration trying
32:38
Speaker 2: to flex its executive power?
32:42
Speaker 4: Certainly, it depends who you ask.
32:44
Speaker 9: I think that it is fair to say that when
32:46
Speaker 9: we're seeing this many motions to force compliance of court orders,
32:50
Speaker 9: more emotions to enforce preliminary orders, but also some of
32:53
Speaker 9: the other ones you've talked about to compel compliance, to
32:56
Speaker 9: consider contempt, that does probably show that we're dealing with
32:59
Speaker 9: an executative branch that is, you know, maybe interpreting court
33:02
Speaker 9: orders in a new way or really you know, drawing
33:05
Speaker 9: more of this litigation as well. The Department of Justice
33:07
Speaker 9: did respond to our reporting and they blamed really more
33:10
Speaker 9: the lanus, you know, they said, this is not a
33:12
Speaker 9: pattern of.
33:13
Speaker 4: Noncompliance in our part.
33:14
Speaker 9: Our DJ lawyers work closely with the agencies to make
33:17
Speaker 9: sure they're complying, and said that it's actually the the
33:20
Speaker 9: court challengers who are trying to test or expand the
33:23
Speaker 9: scope of injunctions. So I think what we're also kind
33:25
Speaker 9: of seeing and not only is sort of this flexing
33:27
Speaker 9: of executive power, but it's also the tension between executive
33:31
Speaker 9: power and judicial power, and the administration saying, you know,
33:35
Speaker 9: what can we do with the courts ruling as they are,
33:38
Speaker 9: and plainiffs are saying what can the courts do to
33:40
Speaker 9: keep the administration from doing what it's doing.
33:43
Speaker 4: So we're kind of seeing a lot of that push
33:44
Speaker 4: in fullyly.
33:45
Speaker 2: I've talked with a lot of former federal prosecutors and
33:48
Speaker 2: former judges who say that what's called the presumption of
33:53
Speaker 2: regularity is being eroded by the Trump administration's actions in court.
33:59
Speaker 2: I've talked with a lot a lot of former federal
34:01
Speaker 2: prosecutors and former judges who say that what's called the
34:06
Speaker 2: presumption of regularity is being eroded in the Trump administration.
34:11
Speaker 2: The presumption of regularity is basically judges assuming that the
34:16
Speaker 2: government acts in good faith in court. But these days
34:20
Speaker 2: judges are not trusting what the Justice Department lawyers are
34:25
Speaker 2: telling them in court.
34:27
Speaker 9: That's certainly a consequence when we're talking about court compliance
34:30
Speaker 9: issues if we're seeing examples where the government is making
34:33
Speaker 9: I mean, in addition to court compliance issues, there have
34:35
Speaker 9: also been notable examples where government lawyers have made mistakes
34:38
Speaker 9: in court. Said think that they've had to go back
34:40
Speaker 9: and later correct and even if they are still correcting it,
34:43
Speaker 9: which is what.
34:43
Speaker 4: You're supposed to do.
34:44
Speaker 9: If you notice an error, you're supposed to correct it,
34:46
Speaker 9: that still does work to chip away at that presumption
34:50
Speaker 9: of regularity, or you know, the assumption judges make that
34:52
Speaker 9: the government's acting in good faith in court. Some of
34:55
Speaker 9: the lawyers I spoke to, you know, one of them
34:57
Speaker 9: told me that she didn't see the presumption of regularity
34:59
Speaker 9: as being in full crisis at this point yet but
35:02
Speaker 9: that it's certainly being tested. So I think that's another
35:05
Speaker 9: thing that we're going to watch and both during this
35:06
Speaker 9: administration and an administrations to come to what extent will
35:09
Speaker 9: the government be able to recover from this.
35:12
Speaker 2: It's also true that the Justice Department is throwing a
35:16
Speaker 2: lot of inexperienced lawyers into court because so many experienced
35:21
Speaker 2: lawyers left the department, And that's particularly true in the
35:25
Speaker 2: immigration cases because there are so many Habeast petitions that
35:30
Speaker 2: the Justice Department has to deal with.
35:33
Speaker 9: Yes, the brain drain and the Justice Department is certainly
35:35
Speaker 9: a significant factor when it comes to these issues. Anytime
35:38
Speaker 9: you see a lawyer make a mistake in court who's
35:40
Speaker 9: really new to the department, I mean, you have to
35:42
Speaker 9: wonder if perhaps having had more of those career people
35:45
Speaker 9: who had years of experience being there might have helped.
35:48
Speaker 9: And certainly, again in that Minnesota case we were discussing,
35:51
Speaker 9: the attorney who was briefly held in civil contempt was
35:54
Speaker 9: a military lawyer who've been dispatched apparently to help out
35:58
Speaker 9: with the surge of immigration cases happening in Minnesota at
36:00
Speaker 9: the time, because you know, there wasn't the staffing to
36:03
Speaker 9: handle it. So I mean, those are the things that happen.
36:06
Speaker 9: Things do slip through, and you end up with mistakes
36:08
Speaker 9: being made even under the best intentions when there isn't
36:11
Speaker 9: full staffing or or full level of experience.
36:14
Speaker 2: And immigration law is so complicated, add that to the
36:17
Speaker 2: problems these young lawyers are facing. Thanks so much, Suzanne.
36:21
Speaker 2: That's Bloomberg Law Reporter Suzanne Moniac and that's it for
36:25
Speaker 2: this edition of The Bloomberg Law Show. Remember you can
36:28
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36:31
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