Weekend Law: Grand Jury Problems, SCOTUS Favors GOP & Taylor Swift

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1:21Missouri, it's the getaway that gets you. Plan your fun at visitmo.com. This is Bloomberg Law with June Grosso from Bloomberg Radio. Under our system of justice, the government cannot force anyone to answer for a serious crime unless you, the people of the community sitting on a grand jury, decide there is enough evidence to warrant an indictment. It is you who protect the rights of both victims and defendants. In an orientation video for new grand jurors, the chief judge of New York, Rowan Wilson, explains the importance of the grand jury in protecting individuals from the power of an abusive prosecutor.

2:10But in the United States and the state of New York, we protect against prosecutorial abuse by requiring the prosecution to first convince a panel of regular citizens just like you, a grand jury, that there is probable cause or good reason to charge someone with a crime. And in the past several months, it appears that grand jurors across the country are doing just that the Justice Department has encountered case after case where grand jurors are refusing to return indictments. And in some of those cases, federal judges have accused prosecutors of misconduct during the grand jury proceedings. One example in a high-profile case.

2:53At the end of May, just days before trial, there was a stunning implosion of a case against a group of protesters accused of blocking a federal agent from an ICE facility in Chicago. Judge April Perry said her trust in federal prosecutors had been broken after finding out that prosecutors improperly spoke to grand jurors outside the grand jury room, personally vouched for the strength of the case, and excused grand jurors who disagreed with the government's case. My guest is former federal prosecutor Jimmy Garoulet, a professor at Notre Dame Law School. Jimmy, what's your reaction to the prosecutor's misconduct during the grand jury proceedings?

3:37They're shocking. It's a scandal. Prosecutors are supposed to be a minister of justice, not a minister of corruption, dishonesty and deception. And that's what we're seeing here. I think this was just the unjustified speech. You know, they wanted to get indictments against the Chicago protesters and they were going to take no front answers. So basically, this was an attempt to rig the grand jury system to ensure that they would get the indictments that they were seeking. The judge said that she'd read through hundreds, if not thousands, of grand jury transcripts, and she'd never seen this behavior from prosecutors.

4:11So let's go through some of the things she found disturbing. Explain what's wrong with a prosecutor vouching for the case, saying something like, you can believe me, we have the evidence to prove this case. The grand jurors are to make the decision of whether or not there's probable cause to believe that a crime has been committed. And if so, whether there's probable cause to believe that the target of the grand jury investigation committed the crime. And those decisions should be made exclusively on the evidence that's been presented to the grand jury, not the prosecutor's opinion regarding the strength of the case, the strength of the evidence, but on the evidence itself.

4:50And this is very basic, fundamental, you know, professional responsibility 1.0. This wasn't a mistake. I mean, this was just a blatant violation of fundamental rules of professional responsibility and ethics. Talking about blatant, speaking to grand jurors outside the grand jury room and then dismissing some grand jurors, how would they expect to get away with that? I mean, is the problem that the grand jury process is secret and how does a defense lawyer or a judge know what's going on? That's exactly the case. And so because of the secretive nature of the grand jury proceedings, I'm sure the prosecutors think, well, whatever we're doing that's improper, whatever misconduct we're engaged in is not going to be revealed.

5:32It's not going to be disclosed. And I mean, this is not the only case. In Wyoming, a panel of three judges threw out nine indictments, including some for murder after the examination of the grand jury proceedings revealed misconduct by the Trump appointed U.S. attorney who had had no prosecutorial experience at all. So you have inexperienced people leading a U.S. attorney's office. But some of this seems really basic. Oh, it is. There's really no excuse. I mean, this goes to just fundamental principles of fairness and due process, independence, impartiality. As I stated, this is an attempt to rig the system to obtain the result that prosecutors are seeking to obtain, which is shocking considering the fact that the grand jury system really favors prosecutors.

6:22There's no judge. There's no defense lawyer. The standard of proof is merely probable cause. And then in addition, the prosecutor doesn't have to prove probable cause by unanimous determination of the grand jurors. All they have to prove is 12 of the 23 grand jurors. Just a simple majority have concluded that there's probable cause. And further, the rules of evidence don't apply in the grand jury room. So prosecutors can introduce hearsay evidence, double hearsay, triple hearsay evidence. And despite all of these rules favoring the prosecution, these prosecutors still felt that it was necessary to rig the system.

7:04They were confident that they could prevail based upon those rules. And they needed to reach out and have improper contact with the members of the grand jury. With respect to grand jurors that decided against them in prior cases, they decided, well, let's just exclude those grand jurors. We don't want them on the grand jury because they might decide against us. I mean, this is just shocking conduct and most disturbing. It's not limited to the fairness and the injustice of a particular case, but it creates a loss of trust. There's this loss of trust in the Justice Department that's beginning to emerge.

7:43And judges across the country are beginning to question, can we really believe what the prosecutor is saying? Can we really trust the arguments and the representation that prosecutors are making? And when we get to that point, that becomes a crisis. I think that we're really on the verge of a crisis within the Department of Justice. And that appeared to have happened in this case. Judge Perry told Andrew Boutros, the U.S. attorney for Chicago, who personally came into the courtroom to dismiss the case. Quote, I do believe deeply in the presumption of regularity and that most government attorneys are doing the best they can to do the right thing.

8:23That trust has been broken, and that's been happening in courtrooms across the country. And what we're beginning to see is in more and more cases, defendants are challenging, raising legal challenges to the integrity of the procedures of process inside the grand jury room. And this is now an argument that is being raised in multiple cases across the country, again, challenging the regularity of fairness, the presumption of regularity. And again, I think it is creating a crisis of trust, crisis of trust within the Department of Justice. And not only with judges, but I think more broadly with the public at large.

9:01If the public starts losing trust in the criminal justice system, starts losing trust in the integrity of prosecutors' offices, then that does not speak well for the future of criminal justice in this country. As you mentioned, lawyers in journalist Don Lemon's case, as well as the case against the Southern Poverty Law Center, referenced this Chicago grand jury. And some defense lawyers are trying to get the transcripts of the grand jury proceedings, which had always been super, super secret, shall we say? But I mean, Judge Perry is thinking of releasing the grand jury transcripts here. How else can defendants really find out what happened in the grand jury room?

9:41Well, that creates a problem because grand jury secrecy is predatory. It's embodied in Rule 6A, the rules of criminal procedure. And it's important because we want persons that appear before the grand jury. We want them to testify openly, freely, be frank and open about what evidence they may have. And if their identity is going to be disclosed, then this could have a chilling effect on their willingness to participate in the grand jury proceeding. So it has implications far beyond the individual case. But when the seed of distrust has been planted with the courts, with the general public, we're going to see more and more challenges to the integrity of the grand jury process.

10:25And it could have a chilling effect with respect to witnesses willing to come forward and testify before the grand jury for fear that, again, the transcript is going to be disclosed and maybe their name might not be disclosed, but someone could determine their identity based upon the testimony that is presented to the grand jury. The Chicago U.S. Attorney's Office is reaching out to the defense attorneys in cases that were handled by these prosecutors, and they've agreed to give the defense the minutes of the grand jury proceedings in their cases. This is totally unheard of. In all the years that I worked as a prosecutor, as an assistant U.S.

11:02attorney, as a DOJ prosecutor, this didn't happen. What we're witnessing today is not normal. You know, this is exceedingly rare, and it's very disturbing, and it raises serious consequences about prosecutors that are engaging in this misconduct. And they should not be leaving their ethics outside the grand jury room, We need prosecutors that embrace honesty, justice. They're going to have a sanctions hearing. Do you think that these prosecutors will be sanctioned? Well, it's possible. This misconduct in the Chicago case in particular is quite, quite egregious. So I think that there could be some individual sanctions.

11:42We'll wait and see. When prosecutors engage in gross misconduct, there are very few sanctions that they are subjected to. And that's part of the problem. And that's in large part because of qualified immunity, because internal disciplinary proceedings within the bar is very difficult. They're very, very high standard, high bar that has to be met in order to sanction the prosecutor. And so there isn't much of a deterrent effect. So if you engage in this type of misconduct, yeah, the case might be dismissed, but there's nothing that's going to happen to the prosecutor personally for his or her misconduct.

12:17And I think that's a problem. There's no price to pay. So if you're not going to be sanctioned, then what's a disincentive here for engaging this kind of conduct? The Chicago U.S. Attorney's Office is implementing a, quote, remediation plan for its grand jury procedures. And that includes increased and expanded education about grand jury presentations and extensive deep dive training from national experts outside the office. You don't need deep dive training on the violations that are at issue here. I mean, the prohibition on vouching regarding the evidence, that doesn't need any kind of a deep dive.

12:53That's not a complicated issue that requires, you know, extensive training. Dismissing members of the grand jury that you don't like, this stuff is just so fundamentally basic. It doesn't require any type of extensive, extra deep dive training for prosecutors to know right from wrong on these very fundamental issues. It's just so disturbing. You know, we're seeing cases being dismissed because of selective prosecution. We're seeing grand jurors time and time again failing to bring charges because they think the evidence doesn't support the charges or they've been overcharged by the prosecutor.

13:32And all of it is just it's really damaged the reputation of the Department of Justice. And it's going to take, I think, years and years to regain that trust with the judiciary, with members of the court, with the general public. This is going to be damaged. It's going to be long lasting. It's not going to be quickly remedied. I'm sure we're going to hear a lot more when grand jury transcripts are released in some of these cases. Thanks for sharing your insights, Jimmy. That's Professor Jimmy Garoulet of Notre Dame Law School. Coming up, Taylor Swift is fighting allegations of trademark infringement over her hit album, The Life of a Showgirl.

14:12I'm June Grosso, and you're listening to Bloomberg. Find the family fun you're looking for in Missouri. Whether your crew is searching for this, up for something more like this, seeking adventure like this, or just really, really need something more like this. your family will find the perfect vacation in missouri missouri it's the getaway that gets all of you plan your family fun at visitmo.com we believe in starting with your financial goals not a formula at oppenheimer we put the full strength of our long-standing expertise to work understanding your life and your ambitions and designing the precise strategies that build and protect your wealth with confidence across this generation and the next.

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15:45The Supreme Court's conservatives made another decision this week favoring Republicans in the redistricting frenzy the court itself set off with its decision eviscerating the Voting Rights Act. In a 6-3 vote with Republican appointees in the majority and Democratic appointees in dissent, the court reinstated a Republican-friendly congressional map in Alabama. It allows the state to eliminate a majority black House district and likely flip that Democratic district in the midterms. In doing so, the court rejected the decision of a panel of federal judges that found Alabama intentionally discriminated against black people when drawing that map.

16:30This ruling caps a run of redistricting decisions in the past six months that have bolstered Republican chances to retain their narrow majority in the House, although Chief Justice John Roberts continues to insist that the justices do not make decisions based on politics. The notion that we carry forward the views of the people that appointed us is absurd. President George W. Bush appointed me 20 years ago. The idea that I'm carrying out his agenda somehow is absurd. If you're keeping count, the Alabama decision makes it Republicans 5, Democrats 1 in the redistricting battles before the Supreme Court.

17:17Joining me is Bloomberg Supreme Court reporter Greg Storr, who is keeping count. Greg, I'm not going to ask you to go all the way back through the years, through all the times the Alabama legislature has been before the Supreme Court over its maps. Just go back to the latest decision by the three-judge panel at the end of May. The three-judge panel said that Alabama needed to keep a second-majority black district. And it said that for two reasons. First of all, the court said Alabama had previously engaged in intentional discrimination and defied earlier court rulings by trying to draw a key district that had just a little bit less than a majority of black voters.

18:02And secondly, the lower court said the primary election is on August the 11th, and there's just not enough time for the state to shift everybody to different districts in time for that election. And so by keeping the existing map, which has the two majority black districts, we're actually reducing the amount of confusion that would occur over the next few weeks. And I just want to point out that that three-judge panel consisted of two Trump appointees and a Clinton appointee. Now tell us about this unsigned Supreme Court decision of just a little over three pages, rejecting the decision by the panel, which was supported by findings in a 79-page decision.

18:45It was an unsigned opinion, but it was basically a 6-3 ruling with the six conservative justices, the six Republican appointees in the majority. And what they said is that the lower court got it wrong in multiple respects. It said, among other things, this big ruling in the Supreme Court issue on April 29th that really scaled back the use of the Voting Rights Act and redistricting, that that undercut the claim against Alabama. It also said that the lower court was too quick to presume that Alabama legislators were acting with racial animus, that they should have accorded more of a presumption of good faith for the legislature.

19:22And finally, the Supreme Court said, the six in the majority said that if there's going to be chaos leading up to the election, that's the state's choice. It's not for a lower court to intervene and say, we're going to do something because it's going to reduce the confusion that's on Alabama. And if they want to proceed this way, they can. Justice Sonia Sotomayor wrote a blistering dissent, and she said this decision corrodes the rule of law. Well, she didn't hold back. She wrote for all three of the court's liberals. And she said that the court is disregarding both democratic values and the rule of law.

19:59She said that when the Supreme Court issued that Voting Rights Act decision a few weeks ago, it explicitly left open the possibility that there could be a showing of intentional discrimination by a state against minority voters. And she said that's exactly what the lower court found in this case. She also pointed out that, you know, this Alabama case has a really long entangled history that I won't walk all the way through. But the Supreme Court has actually ruled in this very case after hearing arguments before. And what it said in that case was, we're going to uphold this lower court decision that says that there has to be a second district where black voters can select the candidate of their choice.

20:42And Sotomayor says that the Supreme Court has effectively ignored that. And finally, she pointed out what the lower court pointed out, which is that this is going to invite chaos. The director of elections has suggested it's going to be near impossible to shift everybody into the proper districts in time for the August 11th primary election. And so we will see how that works out in Alabama, but she at least is skeptical that it will be a smooth process. So this is the first test since the justices weakened, I say, eviscerated the Voting Rights Act. Is this sending a message that even findings of intentional discrimination are not enough?

21:22I mean, what's the message here? It certainly suggests that that might be the case. That was the area that the court said it was leaving open when it ruled in the Voting Rights Act case on April 29th. But in this case, a lower court, as you pointed out in a lot of detail, explained why in its view, this was different from that case because it involved that intentional discrimination because they said Alabama legislators were trying to limit black voting power. And the Supreme Court said, and even was willing to do it in this emergency posture where it didn't have a whole lot of time to hear arguments and that sort of thing.

21:59It was willing to say, we're sure enough that the lower court got it wrong, that we are going to block that ruling and allow this district that the lower court thinks is a product of intentional discrimination. We're going to allow that map to be in place for the November election. Greg, when you look at the redistricting decisions from the court since December, they've overwhelmingly favored Republicans. And like in this case, it's always by six to three votes with the Republican appointees in the majority and the Democratic appointees in dissent. So it's hard to look at these decisions as anything but political, despite how much the chief protests that they're not political actors.

22:41It is certainly having a big effect, and that effect is to help the Republican Party, and in particular for the November election. So there are basically six states in this cycle where the Supreme Court has acted in redistricting cases. They're not all the same, but Republicans have won five of them. So there was the big Voting Rights Act case, which was a Louisiana case. There's this one. There's a case where they blocked a lower court ruling that would have required a new map in New York. There was Virginia, where the Supreme Court refused to reinstate a Democratic-drawn map that the voters of the state had approved after the state Supreme Court blocked that map.

23:21And then there was Texas, where they intervened to let Texas Republicans change the map there. Now, the Texas case was very similar to a California case later on that ended up helping Democrats, letting them put a new map in place. Then the big Voting Rights Act decision also spawned some redistricting in states like Tennessee, eliminating some majority black and Democratic-leaning districts. And the upshot of that will be that there will be a number of districts that used to be fairly safe Democratic districts that are now going to be fairly safe Republican districts in November. And we haven't even talked about other types of cases, election cases, the Supreme Court has that might also affect the election in November.

24:00The Purcell principle about judges not interfering close to an election. I've been discussing that a lot lately, and I'm confused about what the Supreme Court considers the Purcell principle to be. You joined Justice Sotomayor there. The Purcell principle, and it's named after the 2006 case that invoked the idea in the first place, the idea is that federal judges shouldn't intervene at kind of the last minute to change the rules of a state-run election. And the Supreme Court over the years has started to make pretty clear that while that restricts lower court federal judges, it doesn't restrict them.

24:42So in this case, one of the things the Supreme Court said, it didn't use the word Purcell, but that was the principle it used, was that when this three-judge panel reinstated the earlier map in a ruling that came down just a week or two ago, that that was interjecting itself improperly in the way the state wanted to conduct the election with this other map. And it didn't matter to the Supreme Court that the only reason the lower court had to act again was because the Supreme Court itself had previously vacated a decision that everybody thought up until a month ago was going to govern the fall election.

25:20So the Supreme Court is restricting federal courts. It is giving a lot of leeway to states that want to redistrict, particularly for partisan purposes. and it is leaving open the possibility that it itself might cause some confusion as long as it is moving in support of those principles of letting states craft their own maps and keeping lower court judges from overstepping their authority. It's nice to be able to exempt yourself from a rule. Greg, tell us about the two cases the Supreme Court has yet to decide that may affect the elections. One is a campaign finance case. It involves what right now is a limit on so-called coordinated party expenditures.

26:04In other words, money that political parties can spend in coordination with their candidates. And the Supreme Court sure seems like it's going to overturn those limits. This is a court that very much sees campaign finance restrictions as a problem for free speech. And if they do that, it will give parties a lot more power. And at least for November will probably help the Republican Party because they have a lot more cash on hand right now than the Democratic Party does. And they will also be able to use this money when you spend money in coordination with a candidate, you can get these discounted rates that candidates can get.

26:39So that's one that the Republican Party is almost certain to win. The second case has to do with the deadlines for mail-in ballots, in which the argument is that Congress has set election day for a particular day in November, and all ballots have to be received by that day. A number of states right now have laws that say as long as the ballots are postmarked by that day, we'll give you a few extra days for them to actually arrive. The Supreme Court might knock out those laws. Republicans are the ones who are arguing for those strict limits, and Democrats are the ones who say that grace periods are appropriate.