# Fifth Circuit Most Reversed & Olympian Charged With Felony

An episode of [Bloomberg Law](https://invisiblenetwork.ai/podcast/277975394), 8 Jul 2026, 31 min.

Audio: https://podtrac.com/pts/redirect.mp3/traffic.omny.fm/d/clips/e73c998e-6e60-432f-8610-ae210140c5b1/7c892d84-801f-4c0b-b0e9-ae2b0012ff5f/9ff34ada-847d-4ec6-b3f1-b481017dae19/audio.mp3?utm_source=Podcast&in_playlist=91224201-26a6-429d-ac3c-ae2b0012ff6d

Constitutional law expert Harold Krent, a professor at the Chicago-Kent College of Law, discusses the conservative Fifth Circuit becoming the circuit most reversed by the Supreme Court this term. Then former federal prosecutor Marisa Darden, head of the White Collar, Government Investigations & Regulatory Practice Group at Benesch Law, discusses DC US Attorney Jeanine Pirro indicting a former Olympian for allegedly damaging the Lincoln Memorial Reflecting Pool. June Grasso hosts. See omnystudio.com/listener for privacy information.

## Transcript

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

Shows are listed from Apple Podcasts' charts and directory, and Podcast Index where it is used. Every show and episode belongs to its publisher and plays from the publisher's own feed; this site hosts none of them.