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DC Grand Jurors Reject Charges & Chief Justice Okays FTC Firing · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 1: Chief Justice John Roberts is allowing President Trump to remove
0:13
Speaker 1: a member of the Federal Trade Commission, the latest in
0:16
Speaker 1: a string of high profile firings allowed by the Supreme
0:20
Speaker 1: Court for now. Rebecca Kelly Slaughter, the FTC's only Democrat,
0:26
Speaker 1: had briefly returned to her job after a federal appeals
0:30
Speaker 1: court ruling in her favor last week. Roberts order, which
0:34
Speaker 1: came with no explanation, nullifies that decision at least until
0:38
Speaker 1: the full Supreme Court decides how to handle the case.
0:42
Speaker 1: He set a September fifteenth deadline for Slaughter's lawyers to
0:46
Speaker 1: respond to the Justice Department's request to keep the Commission
0:50
Speaker 1: out of her job while the legal fight over the
0:53
Speaker 1: merits plays out. My guest is constitutional law professor Harold
0:57
Speaker 1: Krentt of the Chicago Kent College of Law. The FTC
1:02
Speaker 1: Act says a president can remove commissioners only for cause
1:07
Speaker 1: such as inefficiency or neglect of duty. There was no
1:11
Speaker 1: cause here, So why did the Chief Justice allow Trump
1:16
Speaker 1: to remove Slaughter for now?
1:19
Speaker 2: Well, there's two possibilities, and the first is that despite
1:23
Speaker 2: the fact that the Supreme Court is upheld the validity
1:26
Speaker 2: of the president in the FTC case Colfrey's Executive which
1:30
Speaker 2: was decided almost a century ago. The Court has been
1:33
Speaker 2: chipping away at it, and this might signal that the
1:36
Speaker 2: time for chipping away at it may be over and
1:39
Speaker 2: the Court is now ready squarely to face it and
1:42
Speaker 2: overrule it. That's theory one. Theory two is that in
1:47
Speaker 2: all of these removal cases we've never seen a court
1:51
Speaker 2: order reinstatement. An obviously, reinstatement intrudes more dramatically into the
1:56
Speaker 2: president's authority than just in order to pay back pay,
2:01
Speaker 2: as in the Humphis Executive President itself. So the second
2:04
Speaker 2: possibility is the court thinks that, even if they will
2:07
Speaker 2: continue to abide by the Humphreys Executive President, that it's
2:12
Speaker 2: just too much to order reinstatement, and that, of course, then, however,
2:16
Speaker 2: would allow the president to appoint somebody else, another Democrat,
2:20
Speaker 2: And you know, in that sense there would be no
2:22
Speaker 2: real change in terms of the balance of the political parties.
2:25
Speaker 1: He would have to appoint someone who is a Democrat.
2:28
Speaker 3: Yeah.
2:28
Speaker 2: Under the terms of the Act, there's supposed to be
2:31
Speaker 2: five members of the FTC and no more than three
2:35
Speaker 2: of whom can be of any one political party.
2:37
Speaker 1: So this is a temporary order by the Chief Justice.
2:41
Speaker 1: So will you explain what happens next, because it's the
2:44
Speaker 1: Chief Justice who handles all the emergency appeals from.
2:49
Speaker 2: DC correct and so it's a matter of will the
2:53
Speaker 2: government want to keep the litigation going? Presumably it will,
2:58
Speaker 2: and so this stay would then attach as long as
3:03
Speaker 2: the Executive branch hues to its deadlines in terms of
3:09
Speaker 2: then filing for registerchiari, giving time for the Court to
3:14
Speaker 2: then decide the case. And alternatively, the Court could go
3:16
Speaker 2: for rehearing on bank and that would take some time
3:20
Speaker 2: as well. So depending on what the Executive Branch does,
3:23
Speaker 2: this won't get resolved anytime soon, but it could get
3:26
Speaker 2: this resolved of the Supreme Court.
3:28
Speaker 4: Term is the.
3:29
Speaker 1: Chief Justice saying this is an emergency.
3:31
Speaker 2: No, it's an emergency state. There's in the so called
3:34
Speaker 2: shadow docket. And what the Court has been doing more
3:36
Speaker 2: and more is it taking a look at the equities
3:39
Speaker 2: to determine whether there should be interim relief imposed pending
3:44
Speaker 2: you know, exhaustion of appeals, pending a full resolution on
3:49
Speaker 2: the merits. So it's looking at simply the question of
3:54
Speaker 2: a kind of likelihood of success on the merits as
3:57
Speaker 2: well as balance of the equities. So it's a simil
4:00
Speaker 2: to a traditional injunction standard, but it's done obviously in
4:04
Speaker 2: a very informal way, and we don't have the benefit
4:07
Speaker 2: of an opinion.
4:08
Speaker 1: In May, when the Supreme Court allowed Trump to remove
4:11
Speaker 1: members of the National Labor Relations Board and the Merit
4:15
Speaker 1: Systems Protection Board, all the justices voted yeah.
4:19
Speaker 2: So there is a termination that being made by the
4:22
Speaker 2: Court whether to have signed opinions in the so called
4:27
Speaker 2: interim relief or interim docket as opposed to just an
4:30
Speaker 2: order of the Court. And so through some kind of
4:34
Speaker 2: behind the scenes negotiations, they decide who wants to think
4:39
Speaker 2: this is important enough to write an opinion, who is
4:41
Speaker 2: his content with just having an administrative order. So there is
4:44
Speaker 2: no firmly entrenched tradition as to whether any kind of
4:49
Speaker 2: written order will ensue. And the same thing is even
4:52
Speaker 2: true for denials of scerai. Sometimes some of the justices
4:56
Speaker 2: want to stay their own opinion about why the Court
4:59
Speaker 2: should have been sir sure. So there's still discretion left
5:03
Speaker 2: in these sort of nonmerist decisions as to who will
5:07
Speaker 2: write an opinion, And why is.
5:09
Speaker 1: This decision by the Chief Justice any more consequential than
5:14
Speaker 1: the Court letting Trump remove members of the NLRB and
5:18
Speaker 1: the Merit Systems Protection Board.
5:20
Speaker 2: It may be slightly more consequential merely because this is
5:25
Speaker 2: the Federal Trade Commission, the very same commission that was
5:28
Speaker 2: involved in the Humphrey's Executive President some ninety years ago.
5:33
Speaker 2: But you know, to me, I'm not surprised. I don't
5:35
Speaker 2: think court observers were surprised, because like either two reasons
5:40
Speaker 2: that to animate the Chief Justice's action and the Conservative
5:44
Speaker 2: Court obviously, one is that they do want to determine
5:47
Speaker 2: whether or not to get rid of Humpy's executor once
5:50
Speaker 2: in fall, because there's not much left. And then secondly,
5:54
Speaker 2: I think it is a question that's been unanswered in
5:57
Speaker 2: terms of the balancing of the equities. Should a court
6:00
Speaker 2: inequity as nequltable remedy order the President to take somebody
6:05
Speaker 2: back who doesn't want Would you.
6:07
Speaker 1: Say there's a zero percent chance that Humphrey's Executor is
6:12
Speaker 1: going to last through this upcoming Supreme Court term, or
6:17
Speaker 1: are the odds better than that?
6:18
Speaker 2: I would think negligible is probably the right way to
6:22
Speaker 2: frame it. Certainly, I think the odds will be strong
6:26
Speaker 2: backing the fact that Humphrey's executor will be overturned. But
6:29
Speaker 2: there might be some way of keeping Humphrey's executor even
6:35
Speaker 2: in ruling against FTC Commissioner or Slaughter, because of the
6:39
Speaker 2: fact that the FTC really is a different animal than
6:42
Speaker 2: it was in nineteen thirty five. It has vast vastly
6:46
Speaker 2: more power, vastly more personnel, and so the court could
6:49
Speaker 2: try to limit the older case to a different kind
6:54
Speaker 2: of agency which almost doesn't exist anymore.
6:56
Speaker 1: The FTC is different, the Federal Reserve Board is certainly different,
6:59
Speaker 1: and right now Trump is trying to push out Federal
7:04
Speaker 1: Reserve Governor Lisa Cook. Does this decision indicate anything about that?
7:10
Speaker 2: Well, the Court in the prior case that you alluded to,
7:13
Speaker 2: suggested that there's something different about the FED. Politically, of course,
7:17
Speaker 2: there's something different about the FED. Whether it's different from
7:19
Speaker 2: a constitutional perspective, it is harder to understand. But the
7:22
Speaker 2: court there wanted to have some kind of groundwork to
7:26
Speaker 2: suggest that maybe they would rule differently in the case
7:29
Speaker 2: of the Fed than they would even with respect to
7:32
Speaker 2: the FTC. So I do think that there is some
7:35
Speaker 2: chance for differentiation.
7:36
Speaker 1: I mean, do you think that the mortgage fraud allegations
7:42
Speaker 1: of something that happened before she was a FED governor,
7:46
Speaker 1: do you think that those are sufficient if there is
7:49
Speaker 1: a four cause removal.
7:51
Speaker 2: We don't have a lot of cases on this. I
7:54
Speaker 2: do think that there's some president that would suggest that
7:58
Speaker 2: some kind of former, some kind of strong evidence or
8:03
Speaker 2: plausible evidence of fraud is inconsistent with such a responsibility
8:07
Speaker 2: of honor and respect in the US government. But we
8:11
Speaker 2: don't have a lot of judicial precedent on what cause means.
8:15
Speaker 2: But I guess I'm a little more sympathetic with the
8:18
Speaker 2: government than some editorials that I've seen, because you know,
8:22
Speaker 2: I think that you wouldn't want to have a officer
8:24
Speaker 2: of the United States if it could be if it's shown,
8:27
Speaker 2: which it has to be in this case, but if
8:29
Speaker 2: there was a showing that there was, you know, some
8:32
Speaker 2: kind of moral qualms about the individual exercises in a
8:37
Speaker 2: position of trust and trustworthiness.
8:40
Speaker 1: But in any event, in any case that will end
8:43
Speaker 1: up at the Supreme.
8:44
Speaker 2: Court, I think the Supreme Court is going to be busy,
8:47
Speaker 2: and I hope that they have no desire to take
8:50
Speaker 2: a lot of vacations because the case they're just piling up,
8:53
Speaker 2: and even the Court knows they're important and they're going
8:56
Speaker 2: to take time.
8:57
Speaker 1: In all these removal cases. It's it's been the sixth
9:00
Speaker 1: conservative Republican appointees versus the three liberal Democratic appointees. What
9:07
Speaker 1: happens when a Democratic president comes in and wants to
9:11
Speaker 1: fire people on these independent boards? Is the Supreme Court
9:15
Speaker 1: going to reverse itself?
9:16
Speaker 2: I don't think the Supreme Court would be that brazen.
9:19
Speaker 2: I think that the Supreme Court might, at the corners
9:24
Speaker 2: interpret things a little differently depending upon who's in president.
9:28
Speaker 2: They certainly would take different cases depending upon who's present.
9:32
Speaker 2: They would operate their sort of interim or shadow docket differently.
9:36
Speaker 2: But I don't think that they would overrule cases which
9:40
Speaker 2: they decided during the Trump term just because they favored
9:42
Speaker 2: a democratics disfessor.
9:44
Speaker 1: Thanks so much, Hal. That's Professor Harrold Krent of the
9:47
Speaker 1: Chicago Kent College of Law. You've probably heard the much
9:52
Speaker 1: repeated saying that prosecutors have so much influence on grand
9:57
Speaker 1: juries they can get them to indict Sandwich. Well maybe
10:02
Speaker 1: not if that prosecutor is a DC federal prosecutor. Trying
10:07
Speaker 1: to get a grand jury to indict someone overthrowing a
10:11
Speaker 1: salami sandwich, a rap salami sandwich at that. Janine Piro,
10:16
Speaker 1: the US attorney for DC, bragged about charging the man
10:20
Speaker 1: who threw a subway sandwich at an ice officer with
10:24
Speaker 1: a felony of assaulting a federal law enforcement officer.
10:28
Speaker 4: And then he took a subway sandwich about this big
10:31
Speaker 4: and took it and threw it at the officer. He
10:34
Speaker 4: thought it was funny. Well, he doesn't think it's funny
10:37
Speaker 4: today because we charged it with a felony assault on
10:39
Speaker 4: a police officer and we're going to back the police
10:43
Speaker 4: to the hilt. So there, stick your subway sandwich somewhere else.
10:49
Speaker 1: Well, apparently the grand jury didn't get Piero's joke, and
10:53
Speaker 1: the DCUs Attorney's office didn't get their felony indictment against
10:59
Speaker 1: Sean Charles done. They've now charged him with a misdemeanor
11:03
Speaker 1: of simple assault, which doesn't require a grand jury indictment.
11:08
Speaker 1: That reduced the possible sentence from eight years down to one.
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Speaker 1: It's extraordinarily rare for a grand jury to refuse to
11:16
Speaker 1: return an indictment, but the same scenario has played out
11:20
Speaker 1: at least seven times in five cases since Trump ordered
11:24
Speaker 1: a surge in patrols by federal agents and troops in DC.
11:29
Speaker 1: According to the Associated Press, joining me is former federal
11:32
Speaker 1: prosecutor Robert Mintz, a partner mat Carter. In English, Bob,
11:37
Speaker 1: people know the basics of the workings of a jury
11:40
Speaker 1: even if they haven't been on one, because it's depicted
11:43
Speaker 1: so much in the movies and on TV, but less
11:46
Speaker 1: so about the workings of a grand jury. So tell
11:50
Speaker 1: us about the grand jury.
11:52
Speaker 5: A grand jury proceeding is necessary when ever, prosecutors are
11:56
Speaker 5: seeking to bring a felony charge. Under the Fifth Amendment,
12:00
Speaker 5: there is a requirement for capital or otherwise infamous crime
12:05
Speaker 5: to go before a grand jury, which in the federal
12:08
Speaker 5: system is between sixteen and twenty two citizens, in order
12:13
Speaker 5: to establish probable cause to bring the charge. What that
12:17
Speaker 5: means is prosecutors have to essentially present their case to
12:21
Speaker 5: the grand jurors in order to bring the indictment, and
12:25
Speaker 5: what goes on in the grand jury is entirely controlled
12:28
Speaker 5: by prosecutors. It's a presentation in which only the prosecutor
12:32
Speaker 5: is present. The defense lawyer is not allowed inside the
12:36
Speaker 5: grand jury. The defendant does not get a right to
12:39
Speaker 5: testify before the grand jury. It's really the prosecutor asking
12:43
Speaker 5: questions of witnesses, who may summarize interviews and other evidence
12:48
Speaker 5: that they've gathered and allow for far stake to be
12:51
Speaker 5: presented to the grand jury to establish whether or not
12:55
Speaker 5: there is probable cost to bring that charge. Now bear
12:57
Speaker 5: in mind that probable cause a very low bar. It
13:01
Speaker 5: only means that there is a reason to proceed with
13:04
Speaker 5: the case and that the prosecutor is able to get
13:07
Speaker 5: an indictment, and then that case will go to trial.
13:10
Speaker 5: But prosecutors can only bring a case that they believe
13:14
Speaker 5: that a reasonable jury can convict down the road on
13:17
Speaker 5: the standard of trial is beyond a reasonable doubt. So
13:21
Speaker 5: getting an indictment in front of a grand jury is
13:24
Speaker 5: usually a very easy task for prosecutors, and it is
13:28
Speaker 5: exceedingly rare for prosecutors to present a case to a
13:31
Speaker 5: grand jury and not have the grand jury return an indictment.
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Speaker 1: Has that ever happened to you?
13:37
Speaker 5: I was a prosecutor for ten years and I never
13:40
Speaker 5: had a single instance in which the grand jury refused
13:43
Speaker 5: to indict. And while I was in the office, I
13:46
Speaker 5: think it only happened about one time, so it is
13:49
Speaker 5: very very rare, and it's rare for a couple of reasons.
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Speaker 5: Number One, prosecutors only bring cases where they believe there
13:56
Speaker 5: is strong evidence, because again, the case has to go
13:59
Speaker 5: bed on the charging stage. Prosecutors have to believe that
14:03
Speaker 5: they can ultimately convince a jury of proof beyond a
14:07
Speaker 5: reasonable doubt, which is the highest standard we have in
14:10
Speaker 5: our legal system. And so in order to be able
14:13
Speaker 5: to satisfy that standard, there certainly has to at least
14:17
Speaker 5: be probable cause, which is the very lowest standard we
14:20
Speaker 5: have in order to bring the charges. The other reason
14:23
Speaker 5: is that prosecutors are very selective in which cases they bring,
14:26
Speaker 5: and they tend to bring cases in which there is
14:29
Speaker 5: overwhelming evidence. Then they believe that they'll be able to
14:31
Speaker 5: gain that conviction that trial. Otherwise, prosecutors can decline to
14:35
Speaker 5: bring the case, or they can bring different charges that
14:39
Speaker 5: would be easier for them to prove at a trial.
14:41
Speaker 1: And whereas at trial in a criminal case the jurors
14:45
Speaker 1: have to be unanimous in a grand jury, they don't
14:48
Speaker 1: have to be unanimous, right.
14:50
Speaker 5: No, that's exactly right. A criminal trial does have to
14:52
Speaker 5: be a unanimous verdict. In order to get what's called
14:55
Speaker 5: a true bill, or have grand jurors return in indictment,
14:59
Speaker 5: you only need twelve of those grandeurs to vote in
15:02
Speaker 5: favor of the indictment.
15:04
Speaker 1: So there have reportedly been seven times in the last
15:07
Speaker 1: few weeks where the grand jury in DC has refused
15:10
Speaker 1: to return an indictment. So the US Attorney's team tried
15:14
Speaker 1: to secure an indictment against one woman for felony assault
15:19
Speaker 1: against a federal agent, but three separate grand juries refuse
15:24
Speaker 1: to return an indictment against her. She was eventually charged
15:28
Speaker 1: with assaulting, resisting or impeding officers.
15:33
Speaker 5: It's very unusual. In order to sustain a charge of
15:37
Speaker 5: assaulting a federal officer, prosecutors have to show that the
15:40
Speaker 5: federal officer faced a fear of death or serious bodily injury,
15:45
Speaker 5: and it does carry a penalty of up to eight
15:47
Speaker 5: years in prison.
15:49
Speaker 2: So it's very.
15:49
Speaker 5: Unusual for grand jurys to be faced with a potential
15:54
Speaker 5: charge of assaulting a federal officer and not return an indictments.
15:58
Speaker 5: There really are two possible reasons why that happened, And again,
16:02
Speaker 5: what goes on in a grand jury is entirely secret,
16:05
Speaker 5: so we don't really know what their reasons are. And
16:09
Speaker 5: when a grand jury decides not to return a true
16:12
Speaker 5: bill or not to return an indictment, they don't have
16:15
Speaker 5: to give any reasons and don't give any reasons. It's
16:18
Speaker 5: simply a vote that either is twelve in favor of
16:21
Speaker 5: indictment or not twelve in favor of indictment. So at
16:25
Speaker 5: the end of the day, we don't really know the
16:27
Speaker 5: grand jury's reasoning, but we can surmise that it's really
16:30
Speaker 5: one of two things. Either prosecutors hadn't made out their
16:33
Speaker 5: case for probable cause, which is a very low standards.
16:37
Speaker 5: It only means that it allows a case to move
16:39
Speaker 5: forward to trial that there is evidence that a crime
16:42
Speaker 5: has been committed and that the individual who prosecutors are
16:45
Speaker 5: seeking to charge have committed that crime. Or the other
16:49
Speaker 5: reason is something called jury nullification, which really happens at
16:53
Speaker 5: trials more than it happens in front of grand jury's
16:56
Speaker 5: And what happens there is that sometimes jurors will hear
17:01
Speaker 5: a case and jurors may actually believe that the prosecution
17:05
Speaker 5: has met its burden of proof, but for other reasons
17:09
Speaker 5: decide that they are not going to vote for a conviction.
17:13
Speaker 5: That's something called jury nullification, and it generally happens when
17:17
Speaker 5: there's some feeling among jurors that there's been some overreaching
17:22
Speaker 5: by prosecutors or some improper conduct by prosecutors. Once again,
17:27
Speaker 5: the jury system, just like the grand jury system, is
17:30
Speaker 5: entirely secret on prosecutors. As a general rule, never find
17:35
Speaker 5: out why jurors vote a particular way unless there is
17:39
Speaker 5: some alaked impropriety in the jury process. But otherwise there's
17:43
Speaker 5: no way of knowing why jurors vote a particular way.
17:47
Speaker 5: All they will know is, at the end of the day,
17:49
Speaker 5: the jurors did not vote in favor of conviction. And
17:52
Speaker 5: sometimes it happens because jurors simply believe that there's something
17:57
Speaker 5: improper about the charge, about the nature the prosecution, about
18:01
Speaker 5: the way prosecutors handle the case, and so even though
18:05
Speaker 5: prosecutors may have met the burden of proof, the jury
18:08
Speaker 5: may decide not to convict. It really is kind of
18:12
Speaker 5: an act of civil disobedience by juries, and it very
18:16
Speaker 5: rarely happens, but it does happen. On occasion.
18:20
Speaker 1: You heard Pierro saying we're going to back our police
18:23
Speaker 1: to the hilt, and a lot of these cases that
18:26
Speaker 1: we've been talking about involve assaults of some kind on
18:31
Speaker 1: law enforcement. For example, the guy who threw the subway
18:35
Speaker 1: sandwich at the federal officer, and there was another case
18:39
Speaker 1: where a guy was accused of swinging his arms at
18:42
Speaker 1: a park police officer. So is this likely the grand
18:46
Speaker 1: jury's saying they're overcharging these cases?
18:50
Speaker 5: Well, we don't really know why grand juries are refusing
18:54
Speaker 5: to return indictments here, but I think it's a fair
18:57
Speaker 5: assumption that the grand jurors are looking at these charges
19:01
Speaker 5: and deciding that either there is no probable cause, which
19:05
Speaker 5: seems unlikely. The more likely conclusion I think we can
19:09
Speaker 5: reach here is that the grandeurs are deciding that prosecutors
19:12
Speaker 5: are overcharging, that they're looking at the body camera evidence
19:16
Speaker 5: so they can see exactly what went on here, and
19:18
Speaker 5: asking themselves, while that may have been improper, while the
19:23
Speaker 5: defendant may have touched a federal officer, while they may
19:26
Speaker 5: have acted improperly, did they really assault them? Were they're
19:29
Speaker 5: really intending death or serious bodily harm? And it may
19:33
Speaker 5: well be that grandeurs are putting themselves in the shoes
19:37
Speaker 5: of the defendant and saying, what would I do in
19:40
Speaker 5: that circumstance where maybe I was very upset, where maybe
19:44
Speaker 5: the defendant is placed in a situation where they felt
19:48
Speaker 5: that what was going on by the National Guard or
19:51
Speaker 5: by federal officers was somehow went proper. And again, touching
19:55
Speaker 5: of a federal officer or any way impeding what's going
19:58
Speaker 5: on in terms of federal officers trying to conduct their
20:01
Speaker 5: business is improper. But the question is doesn't amount to
20:05
Speaker 5: assaulting a federal officer or is really some lesser charge
20:09
Speaker 5: more appropriate. I think what we can conclude here is
20:12
Speaker 5: that in those instances, grand jurors believe that prosecutors were
20:18
Speaker 5: overcharging those cases and that while the conduct may have
20:21
Speaker 5: been inappropriate, it didn't rise to the level of assaulting
20:25
Speaker 5: a federal officer.
20:26
Speaker 1: Is a grand jury considered sort of a safeguard against
20:30
Speaker 1: prosecutorial overreach.
20:33
Speaker 5: The concept of an indictment is enshrined in the Fifth Amendments,
20:38
Speaker 5: So even going back to the founding of this country,
20:42
Speaker 5: there was always a concern about the government being able
20:46
Speaker 5: to bring charges on its own, and that's why we
20:50
Speaker 5: have this concept of the grand jury, where they hear
20:53
Speaker 5: evidence and prosecutors have to convince those grand jurors who
20:57
Speaker 5: are just like any other jurors out there. They are
21:00
Speaker 5: randomly selected and then they are questioned, and then they're
21:04
Speaker 5: made a part of this grand jury, and all they
21:06
Speaker 5: do is hear evidence for possible charges, and it goes
21:10
Speaker 5: on for about a year and a half while they
21:12
Speaker 5: sit and hear these cases once a week. But they
21:15
Speaker 5: are put in place pursue it to the intent of
21:18
Speaker 5: the framers of the Constitution to act at the buffer
21:21
Speaker 5: between the government and decisions to charge citizens. And that's
21:25
Speaker 5: why in every case in which a federal felony is charged,
21:29
Speaker 5: and that means if the defendant is facing possible imprisonment
21:34
Speaker 5: of more than a year, that's what constitutes a felony
21:37
Speaker 5: that has to go before a grand jury, and a
21:39
Speaker 5: grand jury has to agree that that case should proceed
21:43
Speaker 5: to trial.
21:44
Speaker 1: And in most of these cases it seem that what
21:46
Speaker 1: happened is they drop the charges to misdemeanors. What do
21:51
Speaker 1: prosecutores have to do to charge a misdemeanor.
21:53
Speaker 5: A misdemeanor does not require an indictment. Therefore, it does
21:57
Speaker 5: not have to go before a grand jury because the
22:00
Speaker 5: penalty for misdemeanor is up to one year in prison,
22:03
Speaker 5: and it does not meet that definition of an infamous
22:08
Speaker 5: crime as is stated in the Fifth Amendment, So prosecutors
22:11
Speaker 5: can bring those charges directly, but you still ultimately have
22:14
Speaker 5: to go in front of a jury and get a conviction.
22:17
Speaker 2: Here, so it does.
22:18
Speaker 5: Allow prosecutors to skip the indictment phase. They can bring
22:22
Speaker 5: those charges directly, but they still have to go before
22:26
Speaker 5: a regular jury in order to get a conviction.
22:29
Speaker 1: And also a federal magistrate has criticized the DCUs attorney
22:34
Speaker 1: saying that people are being held in jail while the
22:38
Speaker 1: US attorney is trying to get these indictments from a
22:42
Speaker 1: grand jury.
22:43
Speaker 5: Again, this is really very unprecedented because usually indictments are
22:47
Speaker 5: given very freely. There's the famous quote from Judge Paul Walkler,
22:52
Speaker 5: who was a judged in New York State for many years. Instead,
22:56
Speaker 5: the prosecutors have six complete control of a grand jury
23:00
Speaker 5: that they could get them to indict a ham sandwich.
23:03
Speaker 5: And that really is pretty much the case because of
23:05
Speaker 5: the way prosecutors control that whole proceeding. So it's very
23:09
Speaker 5: unusual for prosecutors to have to go in front of
23:11
Speaker 5: a grand jury multiple times in order to try to
23:14
Speaker 5: get an indictment, and all the while that's happening. The
23:17
Speaker 5: defendant is remaining in jail. What is also extremely unusual
23:22
Speaker 5: is for the US Attorney in Washington, d C. To
23:26
Speaker 5: name Piro to get into stick a public dispute with
23:29
Speaker 5: a sitting magistrate judge where she is calling him out
23:33
Speaker 5: by name, and the magistrate judge is so openly critical
23:38
Speaker 5: of the US Attorney's office, a place where he formally
23:41
Speaker 5: worked as an assistant US attorney. We rarely see that
23:44
Speaker 5: kind of public display between prosecutors and judges. Generally, there
23:49
Speaker 5: is a level of trust that judges have in the
23:52
Speaker 5: federal government, and particularly with regard to the US Attorney's offices.
23:57
Speaker 5: In my experience, having been a federal prosecutor for ten years,
24:00
Speaker 5: judges did show a degree of deference to federal prosecutors
24:05
Speaker 5: when they brought evidence to the judge in order to
24:08
Speaker 5: obtain a search warrant, for example, in order to obtain
24:11
Speaker 5: a wire tap. All of that is presented to the
24:14
Speaker 5: judge x party, which means presented to the judge only
24:18
Speaker 5: by prosecutors. There's no defense involved, and so to a
24:22
Speaker 5: certain degree, judges have to take what prosecutors are presenting
24:25
Speaker 5: to them at face value before they approve a search
24:29
Speaker 5: warrant or before they approve the placement of a wire tap,
24:32
Speaker 5: and they do that based upon years of having built
24:36
Speaker 5: up a certain level of trust between prosecutors and judges,
24:40
Speaker 5: in which judges have been able to rely on representations
24:44
Speaker 5: that the US Attorney's Office has made about certain facts.
24:48
Speaker 5: And when there comes a time where judges are no
24:51
Speaker 5: longer trusting, it really does throw stand to the gears
24:55
Speaker 5: of the justice system, because judges do have to a
24:58
Speaker 5: certain extent rely on the good faith and the truth
25:02
Speaker 5: of prosecutors when they make certain assertions in court, and
25:05
Speaker 5: if that doesn't happen, it really slows the system down
25:09
Speaker 5: and it makes it much more difficult not only for
25:12
Speaker 5: defendants to get fair trials, but also for prosecutors to
25:17
Speaker 5: move their cases forward. So it's going to be interesting
25:20
Speaker 5: to see going forward where this tension between judges and
25:24
Speaker 5: prosecutors continues to escalate, or whether it returns to a
25:28
Speaker 5: state where there is a greater degree of trust between
25:31
Speaker 5: prosecutors and the federal judiciary.
25:34
Speaker 1: I mean, in this administration, we also have the US
25:37
Speaker 1: Attorney General calling out judges by name, so it's not
25:41
Speaker 1: restricted to the DC US Attorney and also just to
25:45
Speaker 1: note that this is the same courthouse where hundreds of
25:49
Speaker 1: Trump supporters were charged and often convicted by juries with
25:54
Speaker 1: joining the mob's attack on the US capital on January
25:57
Speaker 1: sixth of twenty twenty one. Comp used his clemency powers
26:01
Speaker 1: to erase those cases.
26:03
Speaker 5: One of the things I think we'll see from Defense
26:05
Speaker 5: Council here is trying to raise the defense of selective prosecution,
26:10
Speaker 5: and what that really means is arguing that a similarly
26:13
Speaker 5: situated defendant was handled differently by the government, and they
26:18
Speaker 5: may point to the January sixth rioters whose convictions were
26:22
Speaker 5: ultimately dismissed and whose charges were ultimately dismissed and say
26:27
Speaker 5: that that's really the same thing as the assault charges
26:30
Speaker 5: that are brought here, to try to point out that
26:32
Speaker 5: there's a selective enforcement going on here. Now, I think
26:36
Speaker 5: that in the end of the day, that probably won't work,
26:38
Speaker 5: because there are some material differences between January sixth and
26:42
Speaker 5: these prosecutions that I think the government will be able
26:45
Speaker 5: to raise. For example, I think we can expect prosecutors
26:49
Speaker 5: now to argue that these assault charges are being brought
26:53
Speaker 5: as part of an ongoing public safety emergency, whereas January
26:57
Speaker 5: sixth was a single, one time event and the facts
27:01
Speaker 5: are different than what we're seeing right now. But I
27:05
Speaker 5: do think that that argument will be raised by the defense,
27:09
Speaker 5: and it's possible that when these cases get in front
27:11
Speaker 5: of a jury, that the defense will try to draw
27:14
Speaker 5: a parallel between the January sixth riders and the individuals
27:18
Speaker 5: charged with assaulting federal officers in these circumstances, and try
27:23
Speaker 5: to play on juror's concept that there is some inequity
27:27
Speaker 5: here or that the prosecution has overreached and even charging
27:30
Speaker 5: these people with assault in the first place.
27:32
Speaker 1: It'll be interesting to see if any of these cases
27:35
Speaker 1: get pleaded out and don't even go to trial. Thanks
27:38
Speaker 1: so much, Bob. That's Robert Mints of McCarter and English.
27:44
Speaker 1: A US appeals court in Manhattan left intact the eighty
27:48
Speaker 1: three point three million dollar penalty against President Donald Trump
27:53
Speaker 1: in Egen Carroll's defamation lawsuit, rejecting his attempt to overturn
27:57
Speaker 1: the jury's verdict. A unanimous toy today by the Second
28:01
Speaker 1: Circuit Court of Appeals found the trial judge had handled
28:04
Speaker 1: the case properly and that the damages were reasonable. Joining
28:09
Speaker 1: me is Bloomberg Legal reporter Eric Larson Eric tell us
28:14
Speaker 1: about this particular verdict and the trial.
28:17
Speaker 3: So this decision was for a trial in eging. Carroll's
28:22
Speaker 3: lawsuit focused solely on defamation. So when she made her
28:26
Speaker 3: initial allegations about Trump in twenty nineteen, Trump of course
28:30
Speaker 3: responded with remarks that she says defamed her. And so
28:34
Speaker 3: that was the central element in this particular lawsuit. And
28:39
Speaker 3: the reason it gets a little confusing sometimes is that
28:41
Speaker 3: there was another lawsuit that she filed after that, under
28:44
Speaker 3: a New York state law that just temporarily lifted the
28:47
Speaker 3: statute of limitations for victims of sexual assault to file
28:52
Speaker 3: civil lawsuits against their accused attackers. So she filed she
28:56
Speaker 3: was actually the first person to file a lawsuit under
28:59
Speaker 3: that law. Than was a totally separate trial that she
29:02
Speaker 3: also won, and that resulted in a five million dollar
29:05
Speaker 3: damage award in a sex abuse and defamation case. And
29:10
Speaker 3: this one today is strictly about that earlier defamation lawsuit.
29:14
Speaker 1: So trumpet argued that the damages were unreasonably excessive. What
29:19
Speaker 1: did the second circuit find about that.
29:21
Speaker 3: Well, they just flought out disagreed. They said that the
29:24
Speaker 3: damages were reasonable. As they put it, quote in light
29:28
Speaker 3: of the extraordinary and egregious facts of the case. So
29:31
Speaker 3: they looked at the fact and made their own determination
29:35
Speaker 3: about the seriousness of the conduct. I think we've seen
29:39
Speaker 3: all along that the defamation was considered to be particularly
29:43
Speaker 3: egregious because you know, it came from a then sitting
29:47
Speaker 3: president of the United States making statements from the White
29:50
Speaker 3: House to a large audience. So those were some of
29:54
Speaker 3: the unique elements of the case that resulted in this
29:58
Speaker 3: huge award, and worth noting that that eighty three point
30:01
Speaker 3: three million, most of that is punitive damages. It was
30:05
Speaker 3: a smaller portion that was just compensating miss Carroll for
30:09
Speaker 3: the damage to her reputation. Most of that was calculated
30:13
Speaker 3: by the jury specifically to punish Trump, to discourage and
30:18
Speaker 3: deter similar conduct in the future, and of course taking
30:22
Speaker 3: into account as well that he's a very wealthy man,
30:24
Speaker 3: a very powerful man. Part of that is also why
30:27
Speaker 3: the damage award was so large.
30:29
Speaker 1: The panel the Second Circuit noted that he made several
30:33
Speaker 1: disruptive comments and gestures in front of the judge and
30:37
Speaker 1: jury weill Carol was testifying. I mean, it seemed like
30:40
Speaker 1: he was his own worst enemy in this trial. What
30:43
Speaker 1: was his behavior like in the courtroom that might have
30:46
Speaker 1: affected the jury.
30:48
Speaker 3: Yeah, you know, the handel did mention that in their decision.
30:52
Speaker 3: I covered the trial. I was there was very unusual.
30:55
Speaker 3: I covered a lot of trials before, and it stood
30:57
Speaker 3: out not just because it was Trump, but just his
31:02
Speaker 3: conduct did stand out. At one point, the judge said,
31:04
Speaker 3: you know, please don't make me have to remove you
31:07
Speaker 3: from the court in front of the jury. And it
31:10
Speaker 3: was one with Miss Carroll was testifying that there were
31:12
Speaker 3: complaints by the defense that mister Trump could be heard
31:16
Speaker 3: muttering and seemed shaking his head and things like that
31:19
Speaker 3: in front of the jury, which of course the judge
31:21
Speaker 3: does not want to see because that can be distracting
31:24
Speaker 3: to the jury or sway the jury. And so it's just,
31:27
Speaker 3: you know, completely inappropriate in any trial. And during closing
31:31
Speaker 3: arguments as well, when ROBERTA. Chaplin's lawyer was speaking, mister
31:37
Speaker 3: Trump just got up and walked out of the courtroom.
31:40
Speaker 1: The second circle didn't fault the trial judge striking a
31:44
Speaker 1: portion of Trump's own testimony because Trump went beyond the
31:49
Speaker 1: yes or no response that his lawyer had agreed to do.
31:53
Speaker 3: You recall this, Oh, yes, that was another unusual moment
31:57
Speaker 3: in the trial. Because Trump taking the stand was always
32:01
Speaker 3: going to be a big moment. We of course were
32:04
Speaker 3: prepared for a longer time on the witness stand. I
32:07
Speaker 3: think it would only came out to about five minutes.
32:09
Speaker 3: But the reason it was so contentious is because, of
32:13
Speaker 3: course the judge had already found Trump liable for defamation
32:17
Speaker 3: before the trial, and the trial technically was just on
32:21
Speaker 3: the damages. So because the judge had already found Trump
32:25
Speaker 3: liable based on the record, it was determined by the
32:28
Speaker 3: judge that mister Trump could not deny the liability on
32:32
Speaker 3: the witness stand, and pretty much everything that Trump wanted
32:36
Speaker 3: to say about what was going on, in some way
32:38
Speaker 3: it could be construed as denying liability. So there was
32:41
Speaker 3: a lot of argument back and forth on that, and
32:43
Speaker 3: eventually Trump's lawyer, Alena Habba agreed to I think there's
32:47
Speaker 3: four questions and had made guarantees to the judge about
32:52
Speaker 3: sort of what the extent of each answer would be,
32:54
Speaker 3: and there was one of them that Miss Hobbit said,
32:57
Speaker 3: this will just be a yes or no answer. As
33:00
Speaker 3: soon as Trump said no, he started continuing on saying
33:06
Speaker 3: that he said what he said to defend his family
33:08
Speaker 3: and things like that, and the judge interrupted him and
33:11
Speaker 3: pulled the jury to disregard everything after the word no.
33:15
Speaker 1: Are these comments that he made about eging Carroll? Were
33:19
Speaker 1: they made after he became president?
33:22
Speaker 3: Right, So this defamation case was focused on only statements
33:26
Speaker 3: that he had made from the White House in twenty
33:29
Speaker 3: nineteen when she went public with her allegations. So the
33:32
Speaker 3: difference between this and the other case was focused on
33:34
Speaker 3: sex abuse under New York law. That also did have
33:37
Speaker 3: a defamation angle to it as well, concerning separate but
33:41
Speaker 3: similar statements that Trump made about eging Carroll after his
33:44
Speaker 3: first term. So that's why those statements were included in
33:48
Speaker 3: that other case. And this case we've been discussing is
33:51
Speaker 3: just focused on comments that he made in twenty nineteen
33:54
Speaker 3: during his first term.
33:56
Speaker 1: And so he said he had some form of presidential immunity,
34:00
Speaker 1: which the Second Circuit rejected.
34:02
Speaker 3: That's right. So that was one of the arguments that
34:05
Speaker 3: he had been making all along, was that the conduct was,
34:09
Speaker 3: you know, while he was president Carrol's side, that it
34:12
Speaker 3: wasn't presidential conduct technically. Trump argued, you know, some serious
34:17
Speaker 3: allegations are made against the sitting president he has right
34:20
Speaker 3: to set the record straight and dispute that. Of course,
34:24
Speaker 3: there's a lot of nuance there on both sides. Ultimately,
34:26
Speaker 3: he consistently lost on that argument.
34:30
Speaker 1: Now they haven't said whether he is going to appeal
34:34
Speaker 1: this to the Supreme Court. That's the last avenue I
34:36
Speaker 1: take it.
34:36
Speaker 3: Here, right. I mean, I think that we see from
34:41
Speaker 3: a filing in the Supreme Court, that a recent filing
34:45
Speaker 3: that Trump's lawyers are requesting to extend the deadlines for
34:49
Speaker 3: him to be able to appeal to the Supreme Court
34:52
Speaker 3: that other five million dollar verdict. So I think based
34:55
Speaker 3: on that we can expect that he will be formally
34:58
Speaker 3: appealing that other case and then probably this one as well.
35:03
Speaker 1: Trump did have a huge appellent victory in New York.
35:06
Speaker 3: Recently, right, So he did have a big win, although
35:10
Speaker 3: it could have been bigger because he ended up appealing it.
35:13
Speaker 3: But that was in the New York Attorney General civil
35:16
Speaker 3: fraudcase against Trump over claims that he had inflated the
35:20
Speaker 3: value of his assets by sometimes billions of dollars a
35:24
Speaker 3: year every year for more than a decade in order
35:26
Speaker 3: to get better terms on loans. So there was a
35:30
Speaker 3: bench trial on that the New York Attorney General won
35:33
Speaker 3: and he was hit with a penalty of nearly half
35:36
Speaker 3: a billion dollars. So an intermediate appeals court here in
35:41
Speaker 3: Manhattan did hear that case over a year ago. Now
35:45
Speaker 3: it took a long time to come out with their decision,
35:47
Speaker 3: but they recently vacated that massive verdict and that was
35:51
Speaker 3: a big win for Trump. But they upheld the liability
35:55
Speaker 3: finding against him and all of the other non financial
35:57
Speaker 3: sanctions in the case, including ban on Trump and his
36:01
Speaker 3: two sons serving as directors of the New York company
36:04
Speaker 3: for period of years. So those measures were currently unfold anyway,
36:08
Speaker 3: pending appeal. But it was a big win on that
36:11
Speaker 3: financial aspect of that case for Trump. He'd argued all
36:14
Speaker 3: along that that penalty was too big. Interestingly, the panel
36:17
Speaker 3: of judges did not even direct the lower court, the
36:21
Speaker 3: trial judge, to recalculate the damages or anything like that.
36:24
Speaker 3: They just struck it down and left it there. So
36:29
Speaker 3: the New York Attorney General is appealing that aspect of
36:32
Speaker 3: the case. She's going to want to revive those damages
36:35
Speaker 3: or some amounts, and Trump is also filed the notice
36:38
Speaker 3: of appeal to try to overturn the liability to her.
36:41
Speaker 1: So those are the three cases, the three civil cases
36:45
Speaker 1: that he had in New York. But there's the criminal.
36:48
Speaker 3: Case, right, there's the criminal case that we saw how
36:51
Speaker 3: that was handled with the sentence of nothing against him
36:57
Speaker 3: for the hush money case. But yeah, this is pretty
37:01
Speaker 3: much all that's left in New York.
37:03
Speaker 1: And he's appealing the verdict in the criminal case. And
37:06
Speaker 1: also we have the turnabout is fair play? I guess
37:09
Speaker 1: where the Justice Department is investigating New York Attorney General
37:14
Speaker 1: Letitia James for mortgage fraud and for whether she violated
37:18
Speaker 1: Trump's civil rights by suing him. Thanks so much, Eric.
37:22
Speaker 1: That's Eric Larson, Bloomberg Legal Reporter, and that's it for
37:26
Speaker 1: this edition of The Bloomberg Law Show. Remember you can
37:29
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37:32
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37:35
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