How likely is it that a grand jury would indict her on lying to Congress when she's recounting something that is secondhand?

Yeah.

Perjury cases are historically very difficult to prove in the best of cases.

Here, this is not the best of cases, um, exactly for the, the reason you pointed out.

Um, Cassidy Hutchinson was not recounting information that she had experienced firsthand.

She was admittedly talking about things that she had heard hearsay, essentially.

Um, and so what prosecutors are gonna have to prove is that, number one, there was a false statement, that she made this false statement intentionally, that she had the desire to deceive, um, the committee when she was testifying here, and that the statement was material.

As a former federal prosecutor, does that satisfy you?

How likely is it that a grand jury would indict her on lying to Congress when she's recounting something that is secondhand?

Yeah, perjury cases are historically very difficult to prove in the best of cases.

Here, this is not the best of cases, exactly for the reason you pointed out.

Cassidy Hutchinson was not recounting information that she had experienced firsthand.

She was admittedly talking about things that she had heard hearsay, essentially.

And so what prosecutors are going to have to prove is that, number one, there was a false statement, that she made this false statement intentionally, that she had the desire to deceive the committee when she was testifying here, and that the statement was material.

That will be incredibly difficult for them to prove because essentially it's going to be a He said, she said, right? She says, this is what the person told me.

As a former federal prosecutor, does that satisfy you?

Barrett, what do these phone calls show when it comes to a burden of proof for prosecutors looking at this case? Anything?

Yeah, this will be an important piece of evidence that prosecutors may want to look at.

I don't think it gets you all the way over the line, but it's certainly a significant piece in a case like this.

Here you have one of the accused who's essentially admitting some involvement in what happened, although the details are unclear.

But what you really see from my perspective is just sort of an effort to try to do damage control here.

He says a few things in the call that kind of minimize the experience that she was having while, you know, saying I'm sorry.

But he goes on to talk about, you know, not sure how things got so crazy, really minimizing the fact that he was involved, at least as we believe in some of these Snapchat messages and sort of sending this out to other people.

When you look at that, Merritt, what do you think about that particular statement? Is that a losing hand or is that something that will be reflected in the overall investigation to figure out whether anyone in that area or in that room had the ability to consent?

So what's going to happen now? I mean, the local district attorney is going to be doing the investigation now?

Yeah.

So what he said is that he's going to have a grand jury look into this.

There's going to be a grand jury proceeding.

Presumably, the victim will have a chance to testify.

I would imagine they'll talk to other witnesses, try to find other people that were there, perhaps interview the people that were alleged to be involved in the assault.

They'll certainly look at their statements that they made to campus police.

remarkable that what it took for any of this to come to light and get movement on is a civil lawsuit.

How persuasive do you think that evidence will be now?

Yeah, I mean, we need to learn more about this.

It's surprising to me that this was something that at least it appears the district attorney's office didn't know about up until they learned about it through the civil lawsuit.

Presumably, if there's those messages, there's probably other type of forensic evidence out there.

There might be other text messages, other group me.

This is something that the investigation will focus on.

What else is out there that could corroborate what this survivor is saying in her civil lawsuit? I mean, in a case like this, it really comes down to credibility of the person making the complaint.

What do you think about that?

How do you see this playing out?

Yeah, so it's a really interesting question.

And just because Judge Kelly's order granted this or revoked the administration's taking away the press passes doesn't necessarily give them access everywhere.

And this is where we're seeing a little bit of the law being unsettled.

So we know that the D.C.

Circuit has previously said that there's a difference between areas that are open to all of the press, like the briefing room, and other more, you know, invitation only areas like coming into the Oval Office, for example.

So the D.C.

So what do you think? Do you think Cheyenne and her co-plaintiffs have a viable case against these AI companies? Does she have a good point about the Sherman Act?

For the sake of the hour, what do you expect their legal rationale to be?

I actually don't know.

It's very hard to articulate the argument that they would make because the law is really well settled.

The plaintiffs here moved on two different constitutional grounds.

The first is the classic First Amendment.

That argument basically goes that There's not a guaranteed right for reporters to enter the White House.

But if the White House opens up certain spaces like the press briefing room to reporters, they can't then get rid of some of them because they don't like what they write about.

I mean, is there grounds for, do you think this would end up at the Supreme Court?

Explain what that means and what it's typically associated with.

Yeah, so this is really interesting.

There's no uniform national rule that establishes things like what age can a child walk by themselves, bike by themselves, stay home by themselves.

You see different approaches taken by different states.

So you alluded to this Virginia provision.

So it's interesting.

Virginia is one of these reasonable independent states.

But it does raise the question, how do different states approach the issue of free range parenting from a legal perspective? Because it's like you said, there's no clear bright line.

Barrett, do you think prosecutors will? What do they take into account about whether to retry something?

Yeah, there's a lot that's gonna have to go into this decision.

I mean, you have a situation like this where, from at least if we're reading things right, there were 11 jurors that did not think the prosecutors had proved their case.

Prosecutors have to take that into account.

Maybe it's in how they re-prosecute the case, maybe they changed their strategy, but maybe it's they have to reevaluate the charges.

Is this really a case where first degree murder is appropriate? This jury, at least from what we know now, didn't really seem to think so.

So, yes, I think the prosecutors are probably going to retry this case.

there's a double jeopardy

What does that mean and kind of what's your sense of whether or not it will work or be affected?

Yeah, I mean, so I think she's exactly right.

This is a complicated situation and the judge is in a tricky position here.

You don't want to do anything that will compromise the integrity of the deliberations so far.

It is possible to remove a juror, but you really have to make sure that you're removing them because they are not following the law, not simply because they disagree with the rest of the jurors.

So being a lone holdout is not only consistent with our law.

We tell jurors that they're not supposed to compromise their strongly held beliefs.

But what's your read of things?

So, I mean, how do you see this playing out? Do you think they'll ask for more time or are we headed for a mistrial?

So juries, if I know anything about them, it is that they are unpredictable.

I have had this situation as a trial lawyer.

When I was a prosecutor, we put a case in, the jury deliberated, came back, the judge gave them a version of the Tui Rodriguez charge.

In federal court, it's called an Allen charge.

And in our case, the jury was not able to reach a verdict.

So we had a mistrial.

you know,

What kind of deal might Mangione's attorneys be looking for here?

here?Yeah, so I think it's unlikely that he would get, you know, a deal in the way that we typically think of a deal, being some sort of reduced sentence.

I think if he was going to be pleading guilty to these federal charges, it would be pretty strategic for him because it would allow him the potential to sort of resurrect this argument that he had in state court that the state proceedings should be barred because of double jeopardy.

I think it's very unlikely that the federal officials would be cutting him any sort of a deal that would enable him to have anything other than a very significant, if not life, sentence here.

Um, usually at this point in the prosecution, at least in federal court, um, defendants are pretty much expected to plead to the top count in the indictment.

For Mangione, that would be the stalking charge resulting in death.

Um, so I don't think we should be anticipating, you know, something that gets him off the hook.

So if Mangione ultimately agrees to a potential plea deal with federal prosecutors, how could that impact the state case?

Do you think the Supreme Court will take this up? And how do you think they will look upon this?

Yeah, so I think the Supreme Court will take this up.

They'll take it up on their emergency docket on summer break right now.

Um, I think it's likely that they will take this up not only because it concerns something that's very important to the president, but also it goes along with this idea of what is sort of the extent of executive power, and how does that balance with, you know, Congress's authority that they've been dealing with the entire last session.

Um, I actually think the administration has, I wouldn't say a good chance here of getting the Supreme Court to lift the injunction, but a decent chance.

Um, I'm less convinced that the Court would do it on this sort of broad proposition that the president has this authority.

Instead, I think they may hang their hat on what the dissent did today in the Court of Appeals decision, which is this idea of standing.

How much does that matter here from a legal standpoint?

Mm

... they're essentially saying, "I'm in fear that I will be criminally prosecuted, and I don't want to put myself in jeopardy." Now that he has this pardon, the argument is that he's not in criminal jeopardy because the pardon has essentially said there's, it's not possible for you to be criminally prosecuted for this.

So i- there is a real tension between the Fifth Amendment and this presidential pardon, and I gotta say he is not on solid legal ground with exercising the Fifth here.

Um, I think this will be a, a real question for a judge eventually, um, about whether this, uh, Fifth Amendment protection still stands given this pardon.

I mean, if you were advising him as his lawyer at the time, would you have given the same advice that his lawyer before he was kicked out of the room gave Dr. Fauci?

I, I would.

I think it probably was sound legal advice.

Again, y- you know, he said it very clearly.

Like, what am I missing that you can do this?

So you've identified a very tricky area of the law right now.

A lot of this is still being developed and is pretty fast-moving.

Um, so it definitely has the ring of being, I will say, distasteful at best, illegal at worst, right? So the idea that the president would be able to sell sort of this expedited access to things that he would put out there, while it is new for the president, this concept is not entirely new in and of itself.

You have had, um, you know, sophisticated investigators, like hedge funds, that have been able to buy expedited, um, and exclusive access to news, even sometimes-

And then the next question has to become, well, who else knows what he's gonna do, and how are they acting on that information?

Uh, that's a great point, and that's exactly what we saw here to some extent with this investigation into the person running the teleprompter, right? This was somebody that obviously had, you know, advance notice of what was gonna be on the teleprompter.

This is not information that's gonna always be private.

And Barrett, how big a deal do you think it is?

Uh, this was a huge deal today.

This was a big day for the Supreme Court.

So essentially today, they cast the final death knell on a case from the 1930s, this Humphrey's Executor.

This is one of the seminal cases.

Every first year law student learns about this case, and it's said that, you know, back in the time, that FDR could not fire a member of the FTC without cause.

They, they killed this.

Um, Barrett, are you surprised that the, uh, the Court did not purs- uh, that, that, that, that, uh, Trump lost on the E. Jean Carroll case?

Barrett, are you have you had time to start considering what makes the Fed different from the FTC?

Yeah, I mean, so it's interesting.

This Cook decision that we've been talking about was decided in tandem with slaughter, which was another decision that involved firing somebody from the FTC.

I think the real takeaway from all of this is what the court is saying is the Fed is just different.

For all of the historical reasons, for important reasons about monetary policy, the Fed is different.

And that is why, as it was expected, it came out somewhat different in the Cook case than it did from the Slaughter case.

So again, they did this pretty narrowly.

But that's one thing the lower court will decide.

How strong of an argument do you think they have in trying to argue this, this angle, this personal profit angle?

So this personal profit angle has been argued in a number of different contexts, both in this Trump presidency and in his first Trump presidency.

Um, very few of those legal arguments were ultimately successful at shutting down, you know, various projects or, um, priorities from the president.

But we've seen this again and again from a president who has refused to sort of divest himself, um, from his financial interests where they, uh, combat with things that are, um, happening in the public sphere.

There are these constant conflicts of interest.

Here we have other people involved with the process that also have these conflicts.

I mean, it is a, it is a strong legal case, but again, just based on what we've seen out of both Trump presidencies, there really have not been many cases where this type of legal fight has actually shut down one of the president's projects.

So how significant is that?

Considering that length of time, is it possible he could face additional or perhaps even more serious charges than theft of public money?

Certainly, I mean, I would expect to see some false statement charges.

Again, this is somebody that probably had to undergo some sort of polygraph examination, probably not once, but multiple times during his tenure at the agency.

How he was able to get beyond those, Whether there was anybody else that was involved in those schemes, I don't know if other people might be charged along the way.

This is all things that I'll be interested to see, but at the very minimum, this is an astounding failure, both on the part of Rush, but also on the part of the agency in letting something this significant happen, not just for a few months, but like you said, over a 17-year period.

So a real failure on the security part here.

So how notable is that?

It's so notable.

B- Barrett, the, the judge wants them to address the question of, quote, "Whether the case should be reopened because the court was the victim of a fraud." How extraordinary is it to hear a [laughs] judge even using that, that phrase?

Yeah, this idea of fraud on a court is not something you hear very often, and it's sort of only used in the most extreme circumstances, right? Evidence was withheld, the court was lied to, something, you know, that has this high standard.

So here, by saying that the court may have been a victim of fraud, the judge is really saying there was a lot of red flags about how the government handled this case.

First, that they settled for this really astronomical sum without any real clear injury to Trump or his children-

Even if they did that, but a judge found that there was fraud, would a judge still wanna know what happened, or would, would that be then an avenue they would go down?

Absolutely.

The government saying, "Okay, fine, we don't want this anymore," doesn't necessarily unwind the potential fraud that was committed against the court.

I mean, just play this out to its natural consequent.

Um, w- what kind of discretion is there in terms of an arrest, uh, and how do you interpret what was said?

So there's a great deal of discretion.

Uh, US attorney's offices have different policies depending on who the US attorney is, what kind of case, um, they're dealing with.

But certainly it's within the US attorney's discretion to agree for a surrender where somebody would just come into the courthouse with their lawyer and not have law enforcement go to their house and arrest them and put handcuffs.

Uh, now, given the nature of this charge, because the threat, um, because the crime that he's been charged with is actually one of a threat of violence against the president, the policy of this office could be one that any time we have a threat of violence, we go forward with an arrest.

We don't let that person, uh, surrender because technically they would be, um, accused of a crime of violence, and we don't want to let those people surrender.

Um, one could imagine a situation where you have, you know, the US attorney saying, "Even though that's our policy, given everything we know about this defendant, given the fact that he was just indicted and certainly did not flee or didn't, you know, commit any, um, further acts of violence in that time, that there's no need to go forward with this." But, um, you know, they may be wanting to do it for sort of the look or the spectacle of it.

How significant is this and how does this complicate a possible case against Schiff?

Yeah, I mean, I think if people watching were surprised when they see the headline, that's because what you have is the DOJ investigating the DOJ, which is really not something that we've seen very much in this administration.

So it looks like the DOJ, at least from initial reports and based on the subpoena, that we've seen is investigating whether people that were not authorized to conduct a federal investigation were essentially impersonating federal agents.

We don't know who those people are.

We don't know who the targets of this investigation are.

But what we do know is you're not allowed to go out and represent yourself to be either a federal agent or somebody deputized to be any sort of a federal investigator unless you actually are a federal agent.

There's a crime for this.

What do you make of what's happening here?

How often would DOJ prosecute a case like this?

So bank fraud or what we consider mortgage fraud type cases are very common.

They're something that most US attorney's offices around the country do on a routine basis.

What's different about this case is it is involving a very small amount of money, right? We're talking almost $19,000.

This is not the kind of case that most U.S. attorneys offices are bringing.

Usually they're looking for mortgage schemes or things that involve a much higher monetary threshold.

What jumps out at me is not the fact that it's a mortgage fraud case, but the amount.

How do you think that factors into what a judge or jury decides in this case?

Barrett, do you think the DOJ actually has more information than they're letting on here and that there's something to these calls for transparency?

Well, I'm sure the DOJ has...

I mean-... thousands and thousands of pages of information that they produced in discovery, but the problem is not all information is sufficient to be released to the public.

I mean, here you're going to have hours and hours of child pornography that was captured on these recordings.

You're going to have information that identifies victim, that gives personal stuff about them.

You're gonna have information that was gained through judicial process like a grand jury that simply cannot be disclosed according to law.

So I think the big problem we have here is one of an explanation, explaining exactly why certain things can't be released, what the basis is.

... of New York.

Your thoughts about what you witnessed today?

today?I mean, it's very interesting to hear the president call himself the chief law enforcement officer, because that actually is the role of the attorney general.

Um, it's interesting to me that Pam Bondi would just cede this role to the president.

Uh, and the reason that folks like us that have worked in the Department of Justice are so surprised by the president's speech is because we never heard from the presidents when we worked in the Department of Justice.

In fact, not only was it that the presidents weren't coming to give us this face-to-face talk, we didn't hear their names bandied about, because it was never about what a president's agenda was.

It was never what the president's priority was.

It was what the department needed.

And now she stands there silently while he attacks the rule of law.