September 8, 2025 • 37 mins
Constitutional law professor Harold Krent of the Chicago-Kent College of Law, discusses the Chief Justice allowing President Trump to fire the only Democratic member of the FTC. Former federal prosecutor Robert Mintz, a partner at McCarter & English, discusses the difficulties the DC US Attorney, Jeanine Pirro, is having getting grand juries to indict. Bloomberg legal reporter Erik Larson, discusses the Second Circuit leaving intact the more than $83 million defamation verdict against Trump, June Grasso hosts
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Episode Transcript
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Speaker 1 (00:02):
This is Bloomberg Law with June Grossel from Bloomberg Radio.
Chief Justice John Roberts is allowing President Trump to remove
a member of the Federal Trade Commission, the latest in
a string of high profile firings allowed by the Supreme
Court for now. Rebecca Kelly Slaughter, the FTC's only Democrat,
(00:26):
had briefly returned to her job after a federal appeals
court ruling in her favor last week. Roberts order, which
came with no explanation, nullifies that decision at least until
the full Supreme Court decides how to handle the case.
He set a September fifteenth deadline for Slaughter's lawyers to
(00:46):
respond to the Justice Department's request to keep the Commission
out of her job while the legal fight over the
merits plays out. My guest is constitutional law professor Harold
Krentt of the Chicago Kent College of Law. The FTC
Act says a president can remove commissioners only for cause
(01:07):
such as inefficiency or neglect of duty. There was no
cause here, So why did the Chief Justice allow Trump
to remove Slaughter for now?
Speaker 2 (01:19):
Well, there's two possibilities, and the first is that despite
the fact that the Supreme Court is upheld the validity
of the president in the FTC case Colfrey's Executive which
was decided almost a century ago. The Court has been
chipping away at it, and this might signal that the
time for chipping away at it may be over and
(01:39):
the Court is now ready squarely to face it and
overrule it. That's theory one. Theory two is that in
all of these removal cases we've never seen a court
order reinstatement. An obviously, reinstatement intrudes more dramatically into the
president's authority than just in order to pay back pay,
(02:01):
as in the Humphis Executive President itself. So the second
possibility is the court thinks that, even if they will
continue to abide by the Humphreys Executive President, that it's
just too much to order reinstatement, and that, of course, then, however,
would allow the president to appoint somebody else, another Democrat,
And you know, in that sense there would be no
(02:22):
real change in terms of the balance of the political parties.
Speaker 1 (02:25):
He would have to appoint someone who is a Democrat.
Speaker 3 (02:28):
Yeah.
Speaker 2 (02:28):
Under the terms of the Act, there's supposed to be
five members of the FTC and no more than three
of whom can be of any one political party.
Speaker 1 (02:37):
So this is a temporary order by the Chief Justice.
So will you explain what happens next, because it's the
Chief Justice who handles all the emergency appeals from.
Speaker 2 (02:49):
DC correct and so it's a matter of will the
government want to keep the litigation going? Presumably it will,
and so this stay would then attach as long as
the Executive branch hues to its deadlines in terms of
(03:09):
then filing for registerchiari, giving time for the Court to
then decide the case. And alternatively, the Court could go
for rehearing on bank and that would take some time
as well. So depending on what the Executive Branch does,
this won't get resolved anytime soon, but it could get
this resolved of the Supreme Court.
Speaker 4 (03:28):
Term is the.
Speaker 1 (03:29):
Chief Justice saying this is an emergency.
Speaker 2 (03:31):
No, it's an emergency state. There's in the so called
shadow docket. And what the Court has been doing more
and more is it taking a look at the equities
to determine whether there should be interim relief imposed pending
you know, exhaustion of appeals, pending a full resolution on
the merits. So it's looking at simply the question of
(03:54):
a kind of likelihood of success on the merits as
well as balance of the equities. So it's a simil
to a traditional injunction standard, but it's done obviously in
a very informal way, and we don't have the benefit
of an opinion.
Speaker 1 (04:08):
In May, when the Supreme Court allowed Trump to remove
members of the National Labor Relations Board and the Merit
Systems Protection Board, all the justices voted yeah.
Speaker 2 (04:19):
So there is a termination that being made by the
Court whether to have signed opinions in the so called
interim relief or interim docket as opposed to just an
order of the Court. And so through some kind of
behind the scenes negotiations, they decide who wants to think
this is important enough to write an opinion, who is
(04:41):
his content with just having an administrative order. So there is
no firmly entrenched tradition as to whether any kind of
written order will ensue. And the same thing is even
true for denials of scerai. Sometimes some of the justices
want to stay their own opinion about why the Court
should have been sir sure. So there's still discretion left
(05:03):
in these sort of nonmerist decisions as to who will
write an opinion, And why is.
Speaker 1 (05:09):
This decision by the Chief Justice any more consequential than
the Court letting Trump remove members of the NLRB and
the Merit Systems Protection Board.
Speaker 2 (05:20):
It may be slightly more consequential merely because this is
the Federal Trade Commission, the very same commission that was
involved in the Humphrey's Executive President some ninety years ago.
But you know, to me, I'm not surprised. I don't
think court observers were surprised, because like either two reasons
that to animate the Chief Justice's action and the Conservative
(05:44):
Court obviously, one is that they do want to determine
whether or not to get rid of Humpy's executor once
in fall, because there's not much left. And then secondly,
I think it is a question that's been unanswered in
terms of the balancing of the equities. Should a court
inequity as nequltable remedy order the President to take somebody
(06:05):
back who doesn't want Would you.
Speaker 1 (06:07):
Say there's a zero percent chance that Humphrey's Executor is
going to last through this upcoming Supreme Court term, or
are the odds better than that?
Speaker 2 (06:18):
I would think negligible is probably the right way to
frame it. Certainly, I think the odds will be strong
backing the fact that Humphrey's executor will be overturned. But
there might be some way of keeping Humphrey's executor even
in ruling against FTC Commissioner or Slaughter, because of the
(06:39):
fact that the FTC really is a different animal than
it was in nineteen thirty five. It has vast vastly
more power, vastly more personnel, and so the court could
try to limit the older case to a different kind
of agency which almost doesn't exist anymore.
Speaker 1 (06:56):
The FTC is different, the Federal Reserve Board is certainly different,
and right now Trump is trying to push out Federal
Reserve Governor Lisa Cook. Does this decision indicate anything about that?
Speaker 2 (07:10):
Well, the Court in the prior case that you alluded to,
suggested that there's something different about the FED. Politically, of course,
there's something different about the FED. Whether it's different from
a constitutional perspective, it is harder to understand. But the
court there wanted to have some kind of groundwork to
suggest that maybe they would rule differently in the case
of the Fed than they would even with respect to
(07:32):
the FTC. So I do think that there is some
chance for differentiation.
Speaker 1 (07:36):
I mean, do you think that the mortgage fraud allegations
of something that happened before she was a FED governor,
do you think that those are sufficient if there is
a four cause removal.
Speaker 2 (07:51):
We don't have a lot of cases on this. I
do think that there's some president that would suggest that
some kind of former, some kind of strong evidence or
plausible evidence of fraud is inconsistent with such a responsibility
of honor and respect in the US government. But we
(08:11):
don't have a lot of judicial precedent on what cause means.
But I guess I'm a little more sympathetic with the
government than some editorials that I've seen, because you know,
I think that you wouldn't want to have a officer
of the United States if it could be if it's shown,
which it has to be in this case, but if
there was a showing that there was, you know, some
(08:32):
kind of moral qualms about the individual exercises in a
position of trust and trustworthiness.
Speaker 1 (08:40):
But in any event, in any case that will end
up at the Supreme.
Speaker 2 (08:44):
Court, I think the Supreme Court is going to be busy,
and I hope that they have no desire to take
a lot of vacations because the case they're just piling up,
and even the Court knows they're important and they're going
to take time.
Speaker 1 (08:57):
In all these removal cases. It's it's been the sixth
conservative Republican appointees versus the three liberal Democratic appointees. What
happens when a Democratic president comes in and wants to
fire people on these independent boards? Is the Supreme Court
going to reverse itself?
Speaker 2 (09:16):
I don't think the Supreme Court would be that brazen.
I think that the Supreme Court might, at the corners
interpret things a little differently depending upon who's in president.
They certainly would take different cases depending upon who's present.
They would operate their sort of interim or shadow docket differently.
But I don't think that they would overrule cases which
(09:40):
they decided during the Trump term just because they favored
a democratics disfessor.
Speaker 1 (09:44):
Thanks so much, Hal. That's Professor Harrold Krent of the
Chicago Kent College of Law. You've probably heard the much
repeated saying that prosecutors have so much influence on grand
juries they can get them to indict Sandwich. Well maybe
not if that prosecutor is a DC federal prosecutor. Trying
(10:07):
to get a grand jury to indict someone overthrowing a
salami sandwich, a rap salami sandwich at that. Janine Piro,
the US attorney for DC, bragged about charging the man
who threw a subway sandwich at an ice officer with
a felony of assaulting a federal law enforcement officer.
Speaker 4 (10:28):
And then he took a subway sandwich about this big
and took it and threw it at the officer. He
thought it was funny. Well, he doesn't think it's funny
today because we charged it with a felony assault on
a police officer and we're going to back the police
to the hilt. So there, stick your subway sandwich somewhere else.
Speaker 1 (10:49):
Well, apparently the grand jury didn't get Piero's joke, and
the DCUs Attorney's office didn't get their felony indictment against
Sean Charles done. They've now charged him with a misdemeanor
of simple assault, which doesn't require a grand jury indictment.
That reduced the possible sentence from eight years down to one.
(11:12):
It's extraordinarily rare for a grand jury to refuse to
return an indictment, but the same scenario has played out
at least seven times in five cases since Trump ordered
a surge in patrols by federal agents and troops in DC.
According to the Associated Press, joining me is former federal
(11:32):
prosecutor Robert Mintz, a partner mat Carter. In English, Bob,
people know the basics of the workings of a jury
even if they haven't been on one, because it's depicted
so much in the movies and on TV, but less
so about the workings of a grand jury. So tell
us about the grand jury.
Speaker 5 (11:52):
A grand jury proceeding is necessary when ever, prosecutors are
seeking to bring a felony charge. Under the Fifth Amendment,
there is a requirement for capital or otherwise infamous crime
to go before a grand jury, which in the federal
system is between sixteen and twenty two citizens, in order
(12:13):
to establish probable cause to bring the charge. What that
means is prosecutors have to essentially present their case to
the grand jurors in order to bring the indictment, and
what goes on in the grand jury is entirely controlled
by prosecutors. It's a presentation in which only the prosecutor
is present. The defense lawyer is not allowed inside the
(12:36):
grand jury. The defendant does not get a right to
testify before the grand jury. It's really the prosecutor asking
questions of witnesses, who may summarize interviews and other evidence
that they've gathered and allow for far stake to be
presented to the grand jury to establish whether or not
there is probable cost to bring that charge. Now bear
(12:57):
in mind that probable cause a very low bar. It
only means that there is a reason to proceed with
the case and that the prosecutor is able to get
an indictment, and then that case will go to trial.
But prosecutors can only bring a case that they believe
that a reasonable jury can convict down the road on
the standard of trial is beyond a reasonable doubt. So
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getting an indictment in front of a grand jury is
usually a very easy task for prosecutors, and it is
exceedingly rare for prosecutors to present a case to a
grand jury and not have the grand jury return an indictment.
Speaker 1 (13:35):
Has that ever happened to you?
Speaker 5 (13:37):
I was a prosecutor for ten years and I never
had a single instance in which the grand jury refused
to indict. And while I was in the office, I
think it only happened about one time, so it is
very very rare, and it's rare for a couple of reasons.
Number One, prosecutors only bring cases where they believe there
is strong evidence, because again, the case has to go
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bed on the charging stage. Prosecutors have to believe that
they can ultimately convince a jury of proof beyond a
reasonable doubt, which is the highest standard we have in
our legal system. And so in order to be able
to satisfy that standard, there certainly has to at least
be probable cause, which is the very lowest standard we
(14:20):
have in order to bring the charges. The other reason
is that prosecutors are very selective in which cases they bring,
and they tend to bring cases in which there is
overwhelming evidence. Then they believe that they'll be able to
gain that conviction that trial. Otherwise, prosecutors can decline to
bring the case, or they can bring different charges that
would be easier for them to prove at a trial.
Speaker 1 (14:41):
And whereas at trial in a criminal case the jurors
have to be unanimous in a grand jury, they don't
have to be unanimous, right.
Speaker 5 (14:50):
No, that's exactly right. A criminal trial does have to
be a unanimous verdict. In order to get what's called
a true bill, or have grand jurors return in indictment,
you only need twelve of those grandeurs to vote in
favor of the indictment.
Speaker 1 (15:04):
So there have reportedly been seven times in the last
few weeks where the grand jury in DC has refused
to return an indictment. So the US Attorney's team tried
to secure an indictment against one woman for felony assault
against a federal agent, but three separate grand juries refuse
(15:24):
to return an indictment against her. She was eventually charged
with assaulting, resisting or impeding officers.
Speaker 5 (15:33):
It's very unusual. In order to sustain a charge of
assaulting a federal officer, prosecutors have to show that the
federal officer faced a fear of death or serious bodily injury,
and it does carry a penalty of up to eight
years in prison.
Speaker 2 (15:49):
So it's very.
Speaker 5 (15:49):
Unusual for grand jurys to be faced with a potential
charge of assaulting a federal officer and not return an indictments.
There really are two possible reasons why that happened, And again,
what goes on in a grand jury is entirely secret,
so we don't really know what their reasons are. And
when a grand jury decides not to return a true
(16:12):
bill or not to return an indictment, they don't have
to give any reasons and don't give any reasons. It's
simply a vote that either is twelve in favor of
indictment or not twelve in favor of indictment. So at
the end of the day, we don't really know the
grand jury's reasoning, but we can surmise that it's really
one of two things. Either prosecutors hadn't made out their
(16:33):
case for probable cause, which is a very low standards.
It only means that it allows a case to move
forward to trial that there is evidence that a crime
has been committed and that the individual who prosecutors are
seeking to charge have committed that crime. Or the other
reason is something called jury nullification, which really happens at
trials more than it happens in front of grand jury's
(16:56):
And what happens there is that sometimes jurors will hear
a case and jurors may actually believe that the prosecution
has met its burden of proof, but for other reasons
decide that they are not going to vote for a conviction.
That's something called jury nullification, and it generally happens when
(17:17):
there's some feeling among jurors that there's been some overreaching
by prosecutors or some improper conduct by prosecutors. Once again,
the jury system, just like the grand jury system, is
entirely secret on prosecutors. As a general rule, never find
out why jurors vote a particular way unless there is
(17:39):
some alaked impropriety in the jury process. But otherwise there's
no way of knowing why jurors vote a particular way.
All they will know is, at the end of the day,
the jurors did not vote in favor of conviction. And
sometimes it happens because jurors simply believe that there's something
improper about the charge, about the nature the prosecution, about
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the way prosecutors handle the case, and so even though
prosecutors may have met the burden of proof, the jury
may decide not to convict. It really is kind of
an act of civil disobedience by juries, and it very
rarely happens, but it does happen. On occasion.
Speaker 1 (18:20):
You heard Pierro saying we're going to back our police
to the hilt, and a lot of these cases that
we've been talking about involve assaults of some kind on
law enforcement. For example, the guy who threw the subway
sandwich at the federal officer, and there was another case
where a guy was accused of swinging his arms at
(18:42):
a park police officer. So is this likely the grand
jury's saying they're overcharging these cases?
Speaker 5 (18:50):
Well, we don't really know why grand juries are refusing
to return indictments here, but I think it's a fair
assumption that the grand jurors are looking at these charges
and deciding that either there is no probable cause, which
seems unlikely. The more likely conclusion I think we can
reach here is that the grandeurs are deciding that prosecutors
(19:12):
are overcharging, that they're looking at the body camera evidence
so they can see exactly what went on here, and
asking themselves, while that may have been improper, while the
defendant may have touched a federal officer, while they may
have acted improperly, did they really assault them? Were they're
really intending death or serious bodily harm? And it may
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well be that grandeurs are putting themselves in the shoes
of the defendant and saying, what would I do in
that circumstance where maybe I was very upset, where maybe
the defendant is placed in a situation where they felt
that what was going on by the National Guard or
by federal officers was somehow went proper. And again, touching
(19:55):
of a federal officer or any way impeding what's going
on in terms of federal officers trying to conduct their
business is improper. But the question is doesn't amount to
assaulting a federal officer or is really some lesser charge
more appropriate. I think what we can conclude here is
that in those instances, grand jurors believe that prosecutors were
(20:18):
overcharging those cases and that while the conduct may have
been inappropriate, it didn't rise to the level of assaulting
a federal officer.
Speaker 1 (20:26):
Is a grand jury considered sort of a safeguard against
prosecutorial overreach.
Speaker 5 (20:33):
The concept of an indictment is enshrined in the Fifth Amendments,
So even going back to the founding of this country,
there was always a concern about the government being able
to bring charges on its own, and that's why we
have this concept of the grand jury, where they hear
(20:53):
evidence and prosecutors have to convince those grand jurors who
are just like any other jurors out there. They are
randomly selected and then they are questioned, and then they're
made a part of this grand jury, and all they
do is hear evidence for possible charges, and it goes
on for about a year and a half while they
sit and hear these cases once a week. But they
(21:15):
are put in place pursue it to the intent of
the framers of the Constitution to act at the buffer
between the government and decisions to charge citizens. And that's
why in every case in which a federal felony is charged,
and that means if the defendant is facing possible imprisonment
of more than a year, that's what constitutes a felony
(21:37):
that has to go before a grand jury, and a
grand jury has to agree that that case should proceed
to trial.
Speaker 1 (21:44):
And in most of these cases it seem that what
happened is they drop the charges to misdemeanors. What do
prosecutores have to do to charge a misdemeanor.
Speaker 5 (21:53):
A misdemeanor does not require an indictment. Therefore, it does
not have to go before a grand jury because the
penalty for misdemeanor is up to one year in prison,
and it does not meet that definition of an infamous
crime as is stated in the Fifth Amendment, So prosecutors
can bring those charges directly, but you still ultimately have
(22:14):
to go in front of a jury and get a conviction.
Speaker 2 (22:17):
Here, so it does.
Speaker 5 (22:18):
Allow prosecutors to skip the indictment phase. They can bring
those charges directly, but they still have to go before
a regular jury in order to get a conviction.
Speaker 1 (22:29):
And also a federal magistrate has criticized the DCUs attorney
saying that people are being held in jail while the
US attorney is trying to get these indictments from a
grand jury.
Speaker 5 (22:43):
Again, this is really very unprecedented because usually indictments are
given very freely. There's the famous quote from Judge Paul Walkler,
who was a judged in New York State for many years. Instead,
the prosecutors have six complete control of a grand jury
that they could get them to indict a ham sandwich.
And that really is pretty much the case because of
(23:05):
the way prosecutors control that whole proceeding. So it's very
unusual for prosecutors to have to go in front of
a grand jury multiple times in order to try to
get an indictment, and all the while that's happening. The
defendant is remaining in jail. What is also extremely unusual
is for the US Attorney in Washington, d C. To
(23:26):
name Piro to get into stick a public dispute with
a sitting magistrate judge where she is calling him out
by name, and the magistrate judge is so openly critical
of the US Attorney's office, a place where he formally
worked as an assistant US attorney. We rarely see that
kind of public display between prosecutors and judges. Generally, there
(23:49):
is a level of trust that judges have in the
federal government, and particularly with regard to the US Attorney's offices.
In my experience, having been a federal prosecutor for ten years,
judges did show a degree of deference to federal prosecutors
when they brought evidence to the judge in order to
obtain a search warrant, for example, in order to obtain
(24:11):
a wire tap. All of that is presented to the
judge x party, which means presented to the judge only
by prosecutors. There's no defense involved, and so to a
certain degree, judges have to take what prosecutors are presenting
to them at face value before they approve a search
warrant or before they approve the placement of a wire tap,
(24:32):
and they do that based upon years of having built
up a certain level of trust between prosecutors and judges,
in which judges have been able to rely on representations
that the US Attorney's Office has made about certain facts.
And when there comes a time where judges are no
longer trusting, it really does throw stand to the gears
(24:55):
of the justice system, because judges do have to a
certain extent rely on the good faith and the truth
of prosecutors when they make certain assertions in court, and
if that doesn't happen, it really slows the system down
and it makes it much more difficult not only for
defendants to get fair trials, but also for prosecutors to
(25:17):
move their cases forward. So it's going to be interesting
to see going forward where this tension between judges and
prosecutors continues to escalate, or whether it returns to a
state where there is a greater degree of trust between
prosecutors and the federal judiciary.
Speaker 1 (25:34):
I mean, in this administration, we also have the US
Attorney General calling out judges by name, so it's not
restricted to the DC US Attorney and also just to
note that this is the same courthouse where hundreds of
Trump supporters were charged and often convicted by juries with
joining the mob's attack on the US capital on January
(25:57):
sixth of twenty twenty one. Comp used his clemency powers
to erase those cases.
Speaker 5 (26:03):
One of the things I think we'll see from Defense
Council here is trying to raise the defense of selective prosecution,
and what that really means is arguing that a similarly
situated defendant was handled differently by the government, and they
may point to the January sixth rioters whose convictions were
ultimately dismissed and whose charges were ultimately dismissed and say
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that that's really the same thing as the assault charges
that are brought here, to try to point out that
there's a selective enforcement going on here. Now, I think
that in the end of the day, that probably won't work,
because there are some material differences between January sixth and
these prosecutions that I think the government will be able
to raise. For example, I think we can expect prosecutors
(26:49):
now to argue that these assault charges are being brought
as part of an ongoing public safety emergency, whereas January
sixth was a single, one time event and the facts
are different than what we're seeing right now. But I
do think that that argument will be raised by the defense,
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and it's possible that when these cases get in front
of a jury, that the defense will try to draw
a parallel between the January sixth riders and the individuals
charged with assaulting federal officers in these circumstances, and try
to play on juror's concept that there is some inequity
here or that the prosecution has overreached and even charging
(27:30):
these people with assault in the first place.
Speaker 1 (27:32):
It'll be interesting to see if any of these cases
get pleaded out and don't even go to trial. Thanks
so much, Bob. That's Robert Mints of McCarter and English.
A US appeals court in Manhattan left intact the eighty
three point three million dollar penalty against President Donald Trump
(27:53):
in Egen Carroll's defamation lawsuit, rejecting his attempt to overturn
the jury's verdict. A unanimous toy today by the Second
Circuit Court of Appeals found the trial judge had handled
the case properly and that the damages were reasonable. Joining
me is Bloomberg Legal reporter Eric Larson Eric tell us
(28:14):
about this particular verdict and the trial.
Speaker 3 (28:17):
So this decision was for a trial in eging. Carroll's
lawsuit focused solely on defamation. So when she made her
initial allegations about Trump in twenty nineteen, Trump of course
responded with remarks that she says defamed her. And so
that was the central element in this particular lawsuit. And
(28:39):
the reason it gets a little confusing sometimes is that
there was another lawsuit that she filed after that, under
a New York state law that just temporarily lifted the
statute of limitations for victims of sexual assault to file
civil lawsuits against their accused attackers. So she filed she
was actually the first person to file a lawsuit under
that law. Than was a totally separate trial that she
(29:02):
also won, and that resulted in a five million dollar
damage award in a sex abuse and defamation case. And
this one today is strictly about that earlier defamation lawsuit.
Speaker 1 (29:14):
So trumpet argued that the damages were unreasonably excessive. What
did the second circuit find about that.
Speaker 3 (29:21):
Well, they just flought out disagreed. They said that the
damages were reasonable. As they put it, quote in light
of the extraordinary and egregious facts of the case. So
they looked at the fact and made their own determination
about the seriousness of the conduct. I think we've seen
all along that the defamation was considered to be particularly
(29:43):
egregious because you know, it came from a then sitting
president of the United States making statements from the White
House to a large audience. So those were some of
the unique elements of the case that resulted in this
huge award, and worth noting that that eighty three point
three million, most of that is punitive damages. It was
(30:05):
a smaller portion that was just compensating miss Carroll for
the damage to her reputation. Most of that was calculated
by the jury specifically to punish Trump, to discourage and
deter similar conduct in the future, and of course taking
into account as well that he's a very wealthy man,
a very powerful man. Part of that is also why
(30:27):
the damage award was so large.
Speaker 1 (30:29):
The panel the Second Circuit noted that he made several
disruptive comments and gestures in front of the judge and
jury weill Carol was testifying. I mean, it seemed like
he was his own worst enemy in this trial. What
was his behavior like in the courtroom that might have
affected the jury.
Speaker 3 (30:48):
Yeah, you know, the handel did mention that in their decision.
I covered the trial. I was there was very unusual.
I covered a lot of trials before, and it stood
out not just because it was Trump, but just his
conduct did stand out. At one point, the judge said,
you know, please don't make me have to remove you
from the court in front of the jury. And it
(31:10):
was one with Miss Carroll was testifying that there were
complaints by the defense that mister Trump could be heard
muttering and seemed shaking his head and things like that
in front of the jury, which of course the judge
does not want to see because that can be distracting
to the jury or sway the jury. And so it's just,
you know, completely inappropriate in any trial. And during closing
(31:31):
arguments as well, when ROBERTA. Chaplin's lawyer was speaking, mister
Trump just got up and walked out of the courtroom.
Speaker 1 (31:40):
The second circle didn't fault the trial judge striking a
portion of Trump's own testimony because Trump went beyond the
yes or no response that his lawyer had agreed to do.
Speaker 3 (31:53):
You recall this, Oh, yes, that was another unusual moment
in the trial. Because Trump taking the stand was always
going to be a big moment. We of course were
prepared for a longer time on the witness stand. I
think it would only came out to about five minutes.
But the reason it was so contentious is because, of
(32:13):
course the judge had already found Trump liable for defamation
before the trial, and the trial technically was just on
the damages. So because the judge had already found Trump
liable based on the record, it was determined by the
judge that mister Trump could not deny the liability on
the witness stand, and pretty much everything that Trump wanted
(32:36):
to say about what was going on, in some way
it could be construed as denying liability. So there was
a lot of argument back and forth on that, and
eventually Trump's lawyer, Alena Habba agreed to I think there's
four questions and had made guarantees to the judge about
sort of what the extent of each answer would be,
and there was one of them that Miss Hobbit said,
(32:57):
this will just be a yes or no answer. As
soon as Trump said no, he started continuing on saying
that he said what he said to defend his family
and things like that, and the judge interrupted him and
pulled the jury to disregard everything after the word no.
Speaker 1 (33:15):
Are these comments that he made about eging Carroll? Were
they made after he became president?
Speaker 3 (33:22):
Right, So this defamation case was focused on only statements
that he had made from the White House in twenty
nineteen when she went public with her allegations. So the
difference between this and the other case was focused on
sex abuse under New York law. That also did have
a defamation angle to it as well, concerning separate but
similar statements that Trump made about eging Carroll after his
(33:44):
first term. So that's why those statements were included in
that other case. And this case we've been discussing is
just focused on comments that he made in twenty nineteen
during his first term.
Speaker 1 (33:56):
And so he said he had some form of presidential immunity,
which the Second Circuit rejected.
Speaker 3 (34:02):
That's right. So that was one of the arguments that
he had been making all along, was that the conduct was,
you know, while he was president Carrol's side, that it
wasn't presidential conduct technically. Trump argued, you know, some serious
allegations are made against the sitting president he has right
to set the record straight and dispute that. Of course,
(34:24):
there's a lot of nuance there on both sides. Ultimately,
he consistently lost on that argument.
Speaker 1 (34:30):
Now they haven't said whether he is going to appeal
this to the Supreme Court. That's the last avenue I
take it.
Speaker 3 (34:36):
Here, right. I mean, I think that we see from
a filing in the Supreme Court, that a recent filing
that Trump's lawyers are requesting to extend the deadlines for
him to be able to appeal to the Supreme Court
that other five million dollar verdict. So I think based
on that we can expect that he will be formally
(34:58):
appealing that other case and then probably this one as well.
Speaker 1 (35:03):
Trump did have a huge appellent victory in New York.
Speaker 3 (35:06):
Recently, right, So he did have a big win, although
it could have been bigger because he ended up appealing it.
But that was in the New York Attorney General civil
fraudcase against Trump over claims that he had inflated the
value of his assets by sometimes billions of dollars a
year every year for more than a decade in order
(35:26):
to get better terms on loans. So there was a
bench trial on that the New York Attorney General won
and he was hit with a penalty of nearly half
a billion dollars. So an intermediate appeals court here in
Manhattan did hear that case over a year ago. Now
it took a long time to come out with their decision,
(35:47):
but they recently vacated that massive verdict and that was
a big win for Trump. But they upheld the liability
finding against him and all of the other non financial
sanctions in the case, including ban on Trump and his
two sons serving as directors of the New York company
for period of years. So those measures were currently unfold anyway,
(36:08):
pending appeal. But it was a big win on that
financial aspect of that case for Trump. He'd argued all
along that that penalty was too big. Interestingly, the panel
of judges did not even direct the lower court, the
trial judge, to recalculate the damages or anything like that.
They just struck it down and left it there. So
(36:29):
the New York Attorney General is appealing that aspect of
the case. She's going to want to revive those damages
or some amounts, and Trump is also filed the notice
of appeal to try to overturn the liability to her.
Speaker 1 (36:41):
So those are the three cases, the three civil cases
that he had in New York. But there's the criminal.
Speaker 3 (36:48):
Case, right, there's the criminal case that we saw how
that was handled with the sentence of nothing against him
for the hush money case. But yeah, this is pretty
much all that's left in New York.
Speaker 1 (37:03):
And he's appealing the verdict in the criminal case. And
also we have the turnabout is fair play? I guess
where the Justice Department is investigating New York Attorney General
Letitia James for mortgage fraud and for whether she violated
Trump's civil rights by suing him. Thanks so much, Eric.
That's Eric Larson, Bloomberg Legal Reporter, and that's it for
(37:26):
this edition of The Bloomberg Law Show. Remember you can
always get the latest legal news on our Bloomberg Law podcast.
You can find them on Apple Podcasts, Spotify, and at
www dot Bloomberg dot com, slash podcast Slash Law, and
remember to tune into The Bloomberg Law Show every weeknight
at ten pm Wall Street Time. I'm June Grosso and
(37:47):
you're listening to Bloomberg
This is Bloomberg Law with June Grossel from Bloomberg Radio.
Chief Justice John Roberts is allowing President Trump to remove
a member of the Federal Trade Commission, the latest in
a string of high profile firings allowed by the Supreme
Court for now. Rebecca Kelly Slaughter, the FTC's only Democrat,
(00:26):
had briefly returned to her job after a federal appeals
court ruling in her favor last week. Roberts order, which
came with no explanation, nullifies that decision at least until
the full Supreme Court decides how to handle the case.
He set a September fifteenth deadline for Slaughter's lawyers to
(00:46):
respond to the Justice Department's request to keep the Commission
out of her job while the legal fight over the
merits plays out. My guest is constitutional law professor Harold
Krentt of the Chicago Kent College of Law. The FTC
Act says a president can remove commissioners only for cause
(01:07):
such as inefficiency or neglect of duty. There was no
cause here, So why did the Chief Justice allow Trump
to remove Slaughter for now?
Speaker 2 (01:19):
Well, there's two possibilities, and the first is that despite
the fact that the Supreme Court is upheld the validity
of the president in the FTC case Colfrey's Executive which
was decided almost a century ago. The Court has been
chipping away at it, and this might signal that the
time for chipping away at it may be over and
(01:39):
the Court is now ready squarely to face it and
overrule it. That's theory one. Theory two is that in
all of these removal cases we've never seen a court
order reinstatement. An obviously, reinstatement intrudes more dramatically into the
president's authority than just in order to pay back pay,
(02:01):
as in the Humphis Executive President itself. So the second
possibility is the court thinks that, even if they will
continue to abide by the Humphreys Executive President, that it's
just too much to order reinstatement, and that, of course, then, however,
would allow the president to appoint somebody else, another Democrat,
And you know, in that sense there would be no
(02:22):
real change in terms of the balance of the political parties.
Speaker 1 (02:25):
He would have to appoint someone who is a Democrat.
Speaker 3 (02:28):
Yeah.
Speaker 2 (02:28):
Under the terms of the Act, there's supposed to be
five members of the FTC and no more than three
of whom can be of any one political party.
Speaker 1 (02:37):
So this is a temporary order by the Chief Justice.
So will you explain what happens next, because it's the
Chief Justice who handles all the emergency appeals from.
Speaker 2 (02:49):
DC correct and so it's a matter of will the
government want to keep the litigation going? Presumably it will,
and so this stay would then attach as long as
the Executive branch hues to its deadlines in terms of
(03:09):
then filing for registerchiari, giving time for the Court to
then decide the case. And alternatively, the Court could go
for rehearing on bank and that would take some time
as well. So depending on what the Executive Branch does,
this won't get resolved anytime soon, but it could get
this resolved of the Supreme Court.
Speaker 4 (03:28):
Term is the.
Speaker 1 (03:29):
Chief Justice saying this is an emergency.
Speaker 2 (03:31):
No, it's an emergency state. There's in the so called
shadow docket. And what the Court has been doing more
and more is it taking a look at the equities
to determine whether there should be interim relief imposed pending
you know, exhaustion of appeals, pending a full resolution on
the merits. So it's looking at simply the question of
(03:54):
a kind of likelihood of success on the merits as
well as balance of the equities. So it's a simil
to a traditional injunction standard, but it's done obviously in
a very informal way, and we don't have the benefit
of an opinion.
Speaker 1 (04:08):
In May, when the Supreme Court allowed Trump to remove
members of the National Labor Relations Board and the Merit
Systems Protection Board, all the justices voted yeah.
Speaker 2 (04:19):
So there is a termination that being made by the
Court whether to have signed opinions in the so called
interim relief or interim docket as opposed to just an
order of the Court. And so through some kind of
behind the scenes negotiations, they decide who wants to think
this is important enough to write an opinion, who is
(04:41):
his content with just having an administrative order. So there is
no firmly entrenched tradition as to whether any kind of
written order will ensue. And the same thing is even
true for denials of scerai. Sometimes some of the justices
want to stay their own opinion about why the Court
should have been sir sure. So there's still discretion left
(05:03):
in these sort of nonmerist decisions as to who will
write an opinion, And why is.
Speaker 1 (05:09):
This decision by the Chief Justice any more consequential than
the Court letting Trump remove members of the NLRB and
the Merit Systems Protection Board.
Speaker 2 (05:20):
It may be slightly more consequential merely because this is
the Federal Trade Commission, the very same commission that was
involved in the Humphrey's Executive President some ninety years ago.
But you know, to me, I'm not surprised. I don't
think court observers were surprised, because like either two reasons
that to animate the Chief Justice's action and the Conservative
(05:44):
Court obviously, one is that they do want to determine
whether or not to get rid of Humpy's executor once
in fall, because there's not much left. And then secondly,
I think it is a question that's been unanswered in
terms of the balancing of the equities. Should a court
inequity as nequltable remedy order the President to take somebody
(06:05):
back who doesn't want Would you.
Speaker 1 (06:07):
Say there's a zero percent chance that Humphrey's Executor is
going to last through this upcoming Supreme Court term, or
are the odds better than that?
Speaker 2 (06:18):
I would think negligible is probably the right way to
frame it. Certainly, I think the odds will be strong
backing the fact that Humphrey's executor will be overturned. But
there might be some way of keeping Humphrey's executor even
in ruling against FTC Commissioner or Slaughter, because of the
(06:39):
fact that the FTC really is a different animal than
it was in nineteen thirty five. It has vast vastly
more power, vastly more personnel, and so the court could
try to limit the older case to a different kind
of agency which almost doesn't exist anymore.
Speaker 1 (06:56):
The FTC is different, the Federal Reserve Board is certainly different,
and right now Trump is trying to push out Federal
Reserve Governor Lisa Cook. Does this decision indicate anything about that?
Speaker 2 (07:10):
Well, the Court in the prior case that you alluded to,
suggested that there's something different about the FED. Politically, of course,
there's something different about the FED. Whether it's different from
a constitutional perspective, it is harder to understand. But the
court there wanted to have some kind of groundwork to
suggest that maybe they would rule differently in the case
of the Fed than they would even with respect to
(07:32):
the FTC. So I do think that there is some
chance for differentiation.
Speaker 1 (07:36):
I mean, do you think that the mortgage fraud allegations
of something that happened before she was a FED governor,
do you think that those are sufficient if there is
a four cause removal.
Speaker 2 (07:51):
We don't have a lot of cases on this. I
do think that there's some president that would suggest that
some kind of former, some kind of strong evidence or
plausible evidence of fraud is inconsistent with such a responsibility
of honor and respect in the US government. But we
(08:11):
don't have a lot of judicial precedent on what cause means.
But I guess I'm a little more sympathetic with the
government than some editorials that I've seen, because you know,
I think that you wouldn't want to have a officer
of the United States if it could be if it's shown,
which it has to be in this case, but if
there was a showing that there was, you know, some
(08:32):
kind of moral qualms about the individual exercises in a
position of trust and trustworthiness.
Speaker 1 (08:40):
But in any event, in any case that will end
up at the Supreme.
Speaker 2 (08:44):
Court, I think the Supreme Court is going to be busy,
and I hope that they have no desire to take
a lot of vacations because the case they're just piling up,
and even the Court knows they're important and they're going
to take time.
Speaker 1 (08:57):
In all these removal cases. It's it's been the sixth
conservative Republican appointees versus the three liberal Democratic appointees. What
happens when a Democratic president comes in and wants to
fire people on these independent boards? Is the Supreme Court
going to reverse itself?
Speaker 2 (09:16):
I don't think the Supreme Court would be that brazen.
I think that the Supreme Court might, at the corners
interpret things a little differently depending upon who's in president.
They certainly would take different cases depending upon who's present.
They would operate their sort of interim or shadow docket differently.
But I don't think that they would overrule cases which
(09:40):
they decided during the Trump term just because they favored
a democratics disfessor.
Speaker 1 (09:44):
Thanks so much, Hal. That's Professor Harrold Krent of the
Chicago Kent College of Law. You've probably heard the much
repeated saying that prosecutors have so much influence on grand
juries they can get them to indict Sandwich. Well maybe
not if that prosecutor is a DC federal prosecutor. Trying
(10:07):
to get a grand jury to indict someone overthrowing a
salami sandwich, a rap salami sandwich at that. Janine Piro,
the US attorney for DC, bragged about charging the man
who threw a subway sandwich at an ice officer with
a felony of assaulting a federal law enforcement officer.
Speaker 4 (10:28):
And then he took a subway sandwich about this big
and took it and threw it at the officer. He
thought it was funny. Well, he doesn't think it's funny
today because we charged it with a felony assault on
a police officer and we're going to back the police
to the hilt. So there, stick your subway sandwich somewhere else.
Speaker 1 (10:49):
Well, apparently the grand jury didn't get Piero's joke, and
the DCUs Attorney's office didn't get their felony indictment against
Sean Charles done. They've now charged him with a misdemeanor
of simple assault, which doesn't require a grand jury indictment.
That reduced the possible sentence from eight years down to one.
(11:12):
It's extraordinarily rare for a grand jury to refuse to
return an indictment, but the same scenario has played out
at least seven times in five cases since Trump ordered
a surge in patrols by federal agents and troops in DC.
According to the Associated Press, joining me is former federal
(11:32):
prosecutor Robert Mintz, a partner mat Carter. In English, Bob,
people know the basics of the workings of a jury
even if they haven't been on one, because it's depicted
so much in the movies and on TV, but less
so about the workings of a grand jury. So tell
us about the grand jury.
Speaker 5 (11:52):
A grand jury proceeding is necessary when ever, prosecutors are
seeking to bring a felony charge. Under the Fifth Amendment,
there is a requirement for capital or otherwise infamous crime
to go before a grand jury, which in the federal
system is between sixteen and twenty two citizens, in order
(12:13):
to establish probable cause to bring the charge. What that
means is prosecutors have to essentially present their case to
the grand jurors in order to bring the indictment, and
what goes on in the grand jury is entirely controlled
by prosecutors. It's a presentation in which only the prosecutor
is present. The defense lawyer is not allowed inside the
(12:36):
grand jury. The defendant does not get a right to
testify before the grand jury. It's really the prosecutor asking
questions of witnesses, who may summarize interviews and other evidence
that they've gathered and allow for far stake to be
presented to the grand jury to establish whether or not
there is probable cost to bring that charge. Now bear
(12:57):
in mind that probable cause a very low bar. It
only means that there is a reason to proceed with
the case and that the prosecutor is able to get
an indictment, and then that case will go to trial.
But prosecutors can only bring a case that they believe
that a reasonable jury can convict down the road on
the standard of trial is beyond a reasonable doubt. So
(13:21):
getting an indictment in front of a grand jury is
usually a very easy task for prosecutors, and it is
exceedingly rare for prosecutors to present a case to a
grand jury and not have the grand jury return an indictment.
Speaker 1 (13:35):
Has that ever happened to you?
Speaker 5 (13:37):
I was a prosecutor for ten years and I never
had a single instance in which the grand jury refused
to indict. And while I was in the office, I
think it only happened about one time, so it is
very very rare, and it's rare for a couple of reasons.
Number One, prosecutors only bring cases where they believe there
is strong evidence, because again, the case has to go
(13:59):
bed on the charging stage. Prosecutors have to believe that
they can ultimately convince a jury of proof beyond a
reasonable doubt, which is the highest standard we have in
our legal system. And so in order to be able
to satisfy that standard, there certainly has to at least
be probable cause, which is the very lowest standard we
(14:20):
have in order to bring the charges. The other reason
is that prosecutors are very selective in which cases they bring,
and they tend to bring cases in which there is
overwhelming evidence. Then they believe that they'll be able to
gain that conviction that trial. Otherwise, prosecutors can decline to
bring the case, or they can bring different charges that
would be easier for them to prove at a trial.
Speaker 1 (14:41):
And whereas at trial in a criminal case the jurors
have to be unanimous in a grand jury, they don't
have to be unanimous, right.
Speaker 5 (14:50):
No, that's exactly right. A criminal trial does have to
be a unanimous verdict. In order to get what's called
a true bill, or have grand jurors return in indictment,
you only need twelve of those grandeurs to vote in
favor of the indictment.
Speaker 1 (15:04):
So there have reportedly been seven times in the last
few weeks where the grand jury in DC has refused
to return an indictment. So the US Attorney's team tried
to secure an indictment against one woman for felony assault
against a federal agent, but three separate grand juries refuse
(15:24):
to return an indictment against her. She was eventually charged
with assaulting, resisting or impeding officers.
Speaker 5 (15:33):
It's very unusual. In order to sustain a charge of
assaulting a federal officer, prosecutors have to show that the
federal officer faced a fear of death or serious bodily injury,
and it does carry a penalty of up to eight
years in prison.
Speaker 2 (15:49):
So it's very.
Speaker 5 (15:49):
Unusual for grand jurys to be faced with a potential
charge of assaulting a federal officer and not return an indictments.
There really are two possible reasons why that happened, And again,
what goes on in a grand jury is entirely secret,
so we don't really know what their reasons are. And
when a grand jury decides not to return a true
(16:12):
bill or not to return an indictment, they don't have
to give any reasons and don't give any reasons. It's
simply a vote that either is twelve in favor of
indictment or not twelve in favor of indictment. So at
the end of the day, we don't really know the
grand jury's reasoning, but we can surmise that it's really
one of two things. Either prosecutors hadn't made out their
(16:33):
case for probable cause, which is a very low standards.
It only means that it allows a case to move
forward to trial that there is evidence that a crime
has been committed and that the individual who prosecutors are
seeking to charge have committed that crime. Or the other
reason is something called jury nullification, which really happens at
trials more than it happens in front of grand jury's
(16:56):
And what happens there is that sometimes jurors will hear
a case and jurors may actually believe that the prosecution
has met its burden of proof, but for other reasons
decide that they are not going to vote for a conviction.
That's something called jury nullification, and it generally happens when
(17:17):
there's some feeling among jurors that there's been some overreaching
by prosecutors or some improper conduct by prosecutors. Once again,
the jury system, just like the grand jury system, is
entirely secret on prosecutors. As a general rule, never find
out why jurors vote a particular way unless there is
(17:39):
some alaked impropriety in the jury process. But otherwise there's
no way of knowing why jurors vote a particular way.
All they will know is, at the end of the day,
the jurors did not vote in favor of conviction. And
sometimes it happens because jurors simply believe that there's something
improper about the charge, about the nature the prosecution, about
(18:01):
the way prosecutors handle the case, and so even though
prosecutors may have met the burden of proof, the jury
may decide not to convict. It really is kind of
an act of civil disobedience by juries, and it very
rarely happens, but it does happen. On occasion.
Speaker 1 (18:20):
You heard Pierro saying we're going to back our police
to the hilt, and a lot of these cases that
we've been talking about involve assaults of some kind on
law enforcement. For example, the guy who threw the subway
sandwich at the federal officer, and there was another case
where a guy was accused of swinging his arms at
(18:42):
a park police officer. So is this likely the grand
jury's saying they're overcharging these cases?
Speaker 5 (18:50):
Well, we don't really know why grand juries are refusing
to return indictments here, but I think it's a fair
assumption that the grand jurors are looking at these charges
and deciding that either there is no probable cause, which
seems unlikely. The more likely conclusion I think we can
reach here is that the grandeurs are deciding that prosecutors
(19:12):
are overcharging, that they're looking at the body camera evidence
so they can see exactly what went on here, and
asking themselves, while that may have been improper, while the
defendant may have touched a federal officer, while they may
have acted improperly, did they really assault them? Were they're
really intending death or serious bodily harm? And it may
(19:33):
well be that grandeurs are putting themselves in the shoes
of the defendant and saying, what would I do in
that circumstance where maybe I was very upset, where maybe
the defendant is placed in a situation where they felt
that what was going on by the National Guard or
by federal officers was somehow went proper. And again, touching
(19:55):
of a federal officer or any way impeding what's going
on in terms of federal officers trying to conduct their
business is improper. But the question is doesn't amount to
assaulting a federal officer or is really some lesser charge
more appropriate. I think what we can conclude here is
that in those instances, grand jurors believe that prosecutors were
(20:18):
overcharging those cases and that while the conduct may have
been inappropriate, it didn't rise to the level of assaulting
a federal officer.
Speaker 1 (20:26):
Is a grand jury considered sort of a safeguard against
prosecutorial overreach.
Speaker 5 (20:33):
The concept of an indictment is enshrined in the Fifth Amendments,
So even going back to the founding of this country,
there was always a concern about the government being able
to bring charges on its own, and that's why we
have this concept of the grand jury, where they hear
(20:53):
evidence and prosecutors have to convince those grand jurors who
are just like any other jurors out there. They are
randomly selected and then they are questioned, and then they're
made a part of this grand jury, and all they
do is hear evidence for possible charges, and it goes
on for about a year and a half while they
sit and hear these cases once a week. But they
(21:15):
are put in place pursue it to the intent of
the framers of the Constitution to act at the buffer
between the government and decisions to charge citizens. And that's
why in every case in which a federal felony is charged,
and that means if the defendant is facing possible imprisonment
of more than a year, that's what constitutes a felony
(21:37):
that has to go before a grand jury, and a
grand jury has to agree that that case should proceed
to trial.
Speaker 1 (21:44):
And in most of these cases it seem that what
happened is they drop the charges to misdemeanors. What do
prosecutores have to do to charge a misdemeanor.
Speaker 5 (21:53):
A misdemeanor does not require an indictment. Therefore, it does
not have to go before a grand jury because the
penalty for misdemeanor is up to one year in prison,
and it does not meet that definition of an infamous
crime as is stated in the Fifth Amendment, So prosecutors
can bring those charges directly, but you still ultimately have
(22:14):
to go in front of a jury and get a conviction.
Speaker 2 (22:17):
Here, so it does.
Speaker 5 (22:18):
Allow prosecutors to skip the indictment phase. They can bring
those charges directly, but they still have to go before
a regular jury in order to get a conviction.
Speaker 1 (22:29):
And also a federal magistrate has criticized the DCUs attorney
saying that people are being held in jail while the
US attorney is trying to get these indictments from a
grand jury.
Speaker 5 (22:43):
Again, this is really very unprecedented because usually indictments are
given very freely. There's the famous quote from Judge Paul Walkler,
who was a judged in New York State for many years. Instead,
the prosecutors have six complete control of a grand jury
that they could get them to indict a ham sandwich.
And that really is pretty much the case because of
(23:05):
the way prosecutors control that whole proceeding. So it's very
unusual for prosecutors to have to go in front of
a grand jury multiple times in order to try to
get an indictment, and all the while that's happening. The
defendant is remaining in jail. What is also extremely unusual
is for the US Attorney in Washington, d C. To
(23:26):
name Piro to get into stick a public dispute with
a sitting magistrate judge where she is calling him out
by name, and the magistrate judge is so openly critical
of the US Attorney's office, a place where he formally
worked as an assistant US attorney. We rarely see that
kind of public display between prosecutors and judges. Generally, there
(23:49):
is a level of trust that judges have in the
federal government, and particularly with regard to the US Attorney's offices.
In my experience, having been a federal prosecutor for ten years,
judges did show a degree of deference to federal prosecutors
when they brought evidence to the judge in order to
obtain a search warrant, for example, in order to obtain
(24:11):
a wire tap. All of that is presented to the
judge x party, which means presented to the judge only
by prosecutors. There's no defense involved, and so to a
certain degree, judges have to take what prosecutors are presenting
to them at face value before they approve a search
warrant or before they approve the placement of a wire tap,
(24:32):
and they do that based upon years of having built
up a certain level of trust between prosecutors and judges,
in which judges have been able to rely on representations
that the US Attorney's Office has made about certain facts.
And when there comes a time where judges are no
longer trusting, it really does throw stand to the gears
(24:55):
of the justice system, because judges do have to a
certain extent rely on the good faith and the truth
of prosecutors when they make certain assertions in court, and
if that doesn't happen, it really slows the system down
and it makes it much more difficult not only for
defendants to get fair trials, but also for prosecutors to
(25:17):
move their cases forward. So it's going to be interesting
to see going forward where this tension between judges and
prosecutors continues to escalate, or whether it returns to a
state where there is a greater degree of trust between
prosecutors and the federal judiciary.
Speaker 1 (25:34):
I mean, in this administration, we also have the US
Attorney General calling out judges by name, so it's not
restricted to the DC US Attorney and also just to
note that this is the same courthouse where hundreds of
Trump supporters were charged and often convicted by juries with
joining the mob's attack on the US capital on January
(25:57):
sixth of twenty twenty one. Comp used his clemency powers
to erase those cases.
Speaker 5 (26:03):
One of the things I think we'll see from Defense
Council here is trying to raise the defense of selective prosecution,
and what that really means is arguing that a similarly
situated defendant was handled differently by the government, and they
may point to the January sixth rioters whose convictions were
ultimately dismissed and whose charges were ultimately dismissed and say
(26:27):
that that's really the same thing as the assault charges
that are brought here, to try to point out that
there's a selective enforcement going on here. Now, I think
that in the end of the day, that probably won't work,
because there are some material differences between January sixth and
these prosecutions that I think the government will be able
to raise. For example, I think we can expect prosecutors
(26:49):
now to argue that these assault charges are being brought
as part of an ongoing public safety emergency, whereas January
sixth was a single, one time event and the facts
are different than what we're seeing right now. But I
do think that that argument will be raised by the defense,
(27:09):
and it's possible that when these cases get in front
of a jury, that the defense will try to draw
a parallel between the January sixth riders and the individuals
charged with assaulting federal officers in these circumstances, and try
to play on juror's concept that there is some inequity
here or that the prosecution has overreached and even charging
(27:30):
these people with assault in the first place.
Speaker 1 (27:32):
It'll be interesting to see if any of these cases
get pleaded out and don't even go to trial. Thanks
so much, Bob. That's Robert Mints of McCarter and English.
A US appeals court in Manhattan left intact the eighty
three point three million dollar penalty against President Donald Trump
(27:53):
in Egen Carroll's defamation lawsuit, rejecting his attempt to overturn
the jury's verdict. A unanimous toy today by the Second
Circuit Court of Appeals found the trial judge had handled
the case properly and that the damages were reasonable. Joining
me is Bloomberg Legal reporter Eric Larson Eric tell us
(28:14):
about this particular verdict and the trial.
Speaker 3 (28:17):
So this decision was for a trial in eging. Carroll's
lawsuit focused solely on defamation. So when she made her
initial allegations about Trump in twenty nineteen, Trump of course
responded with remarks that she says defamed her. And so
that was the central element in this particular lawsuit. And
(28:39):
the reason it gets a little confusing sometimes is that
there was another lawsuit that she filed after that, under
a New York state law that just temporarily lifted the
statute of limitations for victims of sexual assault to file
civil lawsuits against their accused attackers. So she filed she
was actually the first person to file a lawsuit under
that law. Than was a totally separate trial that she
(29:02):
also won, and that resulted in a five million dollar
damage award in a sex abuse and defamation case. And
this one today is strictly about that earlier defamation lawsuit.
Speaker 1 (29:14):
So trumpet argued that the damages were unreasonably excessive. What
did the second circuit find about that.
Speaker 3 (29:21):
Well, they just flought out disagreed. They said that the
damages were reasonable. As they put it, quote in light
of the extraordinary and egregious facts of the case. So
they looked at the fact and made their own determination
about the seriousness of the conduct. I think we've seen
all along that the defamation was considered to be particularly
(29:43):
egregious because you know, it came from a then sitting
president of the United States making statements from the White
House to a large audience. So those were some of
the unique elements of the case that resulted in this
huge award, and worth noting that that eighty three point
three million, most of that is punitive damages. It was
(30:05):
a smaller portion that was just compensating miss Carroll for
the damage to her reputation. Most of that was calculated
by the jury specifically to punish Trump, to discourage and
deter similar conduct in the future, and of course taking
into account as well that he's a very wealthy man,
a very powerful man. Part of that is also why
(30:27):
the damage award was so large.
Speaker 1 (30:29):
The panel the Second Circuit noted that he made several
disruptive comments and gestures in front of the judge and
jury weill Carol was testifying. I mean, it seemed like
he was his own worst enemy in this trial. What
was his behavior like in the courtroom that might have
affected the jury.
Speaker 3 (30:48):
Yeah, you know, the handel did mention that in their decision.
I covered the trial. I was there was very unusual.
I covered a lot of trials before, and it stood
out not just because it was Trump, but just his
conduct did stand out. At one point, the judge said,
you know, please don't make me have to remove you
from the court in front of the jury. And it
(31:10):
was one with Miss Carroll was testifying that there were
complaints by the defense that mister Trump could be heard
muttering and seemed shaking his head and things like that
in front of the jury, which of course the judge
does not want to see because that can be distracting
to the jury or sway the jury. And so it's just,
you know, completely inappropriate in any trial. And during closing
(31:31):
arguments as well, when ROBERTA. Chaplin's lawyer was speaking, mister
Trump just got up and walked out of the courtroom.
Speaker 1 (31:40):
The second circle didn't fault the trial judge striking a
portion of Trump's own testimony because Trump went beyond the
yes or no response that his lawyer had agreed to do.
Speaker 3 (31:53):
You recall this, Oh, yes, that was another unusual moment
in the trial. Because Trump taking the stand was always
going to be a big moment. We of course were
prepared for a longer time on the witness stand. I
think it would only came out to about five minutes.
But the reason it was so contentious is because, of
(32:13):
course the judge had already found Trump liable for defamation
before the trial, and the trial technically was just on
the damages. So because the judge had already found Trump
liable based on the record, it was determined by the
judge that mister Trump could not deny the liability on
the witness stand, and pretty much everything that Trump wanted
(32:36):
to say about what was going on, in some way
it could be construed as denying liability. So there was
a lot of argument back and forth on that, and
eventually Trump's lawyer, Alena Habba agreed to I think there's
four questions and had made guarantees to the judge about
sort of what the extent of each answer would be,
and there was one of them that Miss Hobbit said,
(32:57):
this will just be a yes or no answer. As
soon as Trump said no, he started continuing on saying
that he said what he said to defend his family
and things like that, and the judge interrupted him and
pulled the jury to disregard everything after the word no.
Speaker 1 (33:15):
Are these comments that he made about eging Carroll? Were
they made after he became president?
Speaker 3 (33:22):
Right, So this defamation case was focused on only statements
that he had made from the White House in twenty
nineteen when she went public with her allegations. So the
difference between this and the other case was focused on
sex abuse under New York law. That also did have
a defamation angle to it as well, concerning separate but
similar statements that Trump made about eging Carroll after his
(33:44):
first term. So that's why those statements were included in
that other case. And this case we've been discussing is
just focused on comments that he made in twenty nineteen
during his first term.
Speaker 1 (33:56):
And so he said he had some form of presidential immunity,
which the Second Circuit rejected.
Speaker 3 (34:02):
That's right. So that was one of the arguments that
he had been making all along, was that the conduct was,
you know, while he was president Carrol's side, that it
wasn't presidential conduct technically. Trump argued, you know, some serious
allegations are made against the sitting president he has right
to set the record straight and dispute that. Of course,
(34:24):
there's a lot of nuance there on both sides. Ultimately,
he consistently lost on that argument.
Speaker 1 (34:30):
Now they haven't said whether he is going to appeal
this to the Supreme Court. That's the last avenue I
take it.
Speaker 3 (34:36):
Here, right. I mean, I think that we see from
a filing in the Supreme Court, that a recent filing
that Trump's lawyers are requesting to extend the deadlines for
him to be able to appeal to the Supreme Court
that other five million dollar verdict. So I think based
on that we can expect that he will be formally
(34:58):
appealing that other case and then probably this one as well.
Speaker 1 (35:03):
Trump did have a huge appellent victory in New York.
Speaker 3 (35:06):
Recently, right, So he did have a big win, although
it could have been bigger because he ended up appealing it.
But that was in the New York Attorney General civil
fraudcase against Trump over claims that he had inflated the
value of his assets by sometimes billions of dollars a
year every year for more than a decade in order
(35:26):
to get better terms on loans. So there was a
bench trial on that the New York Attorney General won
and he was hit with a penalty of nearly half
a billion dollars. So an intermediate appeals court here in
Manhattan did hear that case over a year ago. Now
it took a long time to come out with their decision,
(35:47):
but they recently vacated that massive verdict and that was
a big win for Trump. But they upheld the liability
finding against him and all of the other non financial
sanctions in the case, including ban on Trump and his
two sons serving as directors of the New York company
for period of years. So those measures were currently unfold anyway,
(36:08):
pending appeal. But it was a big win on that
financial aspect of that case for Trump. He'd argued all
along that that penalty was too big. Interestingly, the panel
of judges did not even direct the lower court, the
trial judge, to recalculate the damages or anything like that.
They just struck it down and left it there. So
(36:29):
the New York Attorney General is appealing that aspect of
the case. She's going to want to revive those damages
or some amounts, and Trump is also filed the notice
of appeal to try to overturn the liability to her.
Speaker 1 (36:41):
So those are the three cases, the three civil cases
that he had in New York. But there's the criminal.
Speaker 3 (36:48):
Case, right, there's the criminal case that we saw how
that was handled with the sentence of nothing against him
for the hush money case. But yeah, this is pretty
much all that's left in New York.
Speaker 1 (37:03):
And he's appealing the verdict in the criminal case. And
also we have the turnabout is fair play? I guess
where the Justice Department is investigating New York Attorney General
Letitia James for mortgage fraud and for whether she violated
Trump's civil rights by suing him. Thanks so much, Eric.
That's Eric Larson, Bloomberg Legal Reporter, and that's it for
(37:26):
this edition of The Bloomberg Law Show. Remember you can
always get the latest legal news on our Bloomberg Law podcast.
You can find them on Apple Podcasts, Spotify, and at
www dot Bloomberg dot com, slash podcast Slash Law, and
remember to tune into The Bloomberg Law Show every weeknight
at ten pm Wall Street Time. I'm June Grosso and
(37:47):
you're listening to Bloomberg
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