The Court Pivots

Welcome!

Grab your favorite morning beverage and join us for morning canolies with Jim Santel.

You don't know me but I'm your brother.

Sampling the news desserts of the week, here is your host, Jim Santel.

This is Jim Santel and yes indeed I am your host for this hour and also next hour right

here on the media's stations of civic media throughout the state of Wisconsin.

This is our Saturday morning broadcast, every Saturday morning talking with you, reviewing,

analyzing, summarizing those major events and stories in the news of America, of our

state and of the world in areas of what of government and law and the aspiration for justice

in all parts of our nation, our state and our world.

We are coming to this morning from the studios of WAUK in downtown Waukesha but once again

broadcasting throughout the state of Wisconsin on many many of our outlets throughout the

civic media community, delighted to have you with me this morning for this hour, hopefully

next hour too.

We've got a lot on our agenda this morning and as always, as always, I'm joined in the

studio here this morning by wonderful producer this morning, Johnny is with me and together

we're also going to be taking your phone calls this hour and next hour as well.

And we have a special phone number this morning just as we did last week this morning we've

got a special phone number and that is this it is 414-441-2941 that number once again

is 414-441-2941, civic media growing, civic media developing in many many areas.

One day perhaps we get our own area code but this morning we've got a special phone number

for you again.

One more time it's 414-441-2941 and together with Johnny, I'm inviting, I'm soliciting,

I'm encouraging your phone calls, especially your inquiries about the subjects we're going

to talk about this morning, your perspectives on them and the ways in which they may indeed

influence your own lives and the lives of the people around you.

As always on our Saturday morning broadcast, we address those things that affect the aspiration

for justice in America, government law, lots of that to get to this morning as well.

And in that context, in that context we always ask and attempt, not always successfully,

but we hope to answer three basic questions, fundamentally what happened.

We have a primacy around civic media focusing on facts, on circumstances, what we know for

a certain, it is not speculative, these are the things that we have confirmed and that

we know to be true.

And second, why are those things relevant?

Why are we talking about those, why are they material significant in our lives and finally,

what if anything can and should we do in response to those things that we know, those things

that are relevant and material in our lives.

All of those questions asked and hopefully answered with your participation this morning

and every Saturday morning on our broadcast.

We do, as always, have an ambitious but well achievable agenda for this morning.

A syllabus that is going to include a number of different hot topics, decisions, issues,

developments in the areas of law, government and justice justice past week.

Let's spend some time focusing in greater detail we normally do on three major cases.

We're going to do sort of a deep dive, almost a microscopic justice analysis of three major

things that are happening or have happened just this past week.

One of them is we're going to go back and talk about this major decision issued by the

United States Supreme Court having to do with whether or not Donald Trump would be on

the ballot in Colorado.

We know the decision already, not surprisingly came out by the Supreme Court when I talk

about the majority and not really the minority opinions, but the concurring opinions in that

decision, finding that indeed Colorado and other states do not, do not under the Constitution

have the authority unilaterally as states to remove a candidate from the primary ballot.

So pushing back and telling Colorado, you got this wrong, when I spent some time talking

with you about what five justices of the Supreme Court wrote, what they explained in terms

of justifying their decision.

And this significantly, I'm going to talk about with three other justices and yet one

more justice wrote in concurrence and agreement with the result, but not in the breadth, the

extent of that result.

I'm going to talk to you all about that talking about this major case, one of three, one

of three coming out from the Supreme Court having to do with Donald Trump.

We know what the other two are as well.

We know that one of them has to do with a case called Fisher and whether or not the charges

against Donald Trump in the federal case against him, the so-called election interference

case, a challenge in that case to one of the charges upon which those at that indictment

is based.

That's the called the Fisher case and we'll talk with you about something that happened

that is the scheduling of an oral argument in that matter that could dramatically impact

the prosecution of that case now coming up for April.

And then we're also going to talk, of course, about the larger immunity decision also coming

up for oral argument on the last day of the court's term, another big issue, another

big event happening this past week, the Supreme Court announcing not only previously that

it is going to be taking that case, granting the writ of search error, I this agreement

to review the case and now setting it on for oral argument.

All of that anticipating decisions, yes, that's right, probably in June of this year we're

going to talk about what those cases mean and then also the impact, the intersection

of those litigation decisions upon our politics and our government and specifically the election

coming up this year.

That is one of the areas we're going to spend some time talking about a deep dive, kind

of a microscopic justice view this morning.

We're going to do that in two other areas as well.

We know as well that the judge who's presiding over the Manhattan criminal case, the so-called

catch and kill case, the so-called case involving hush money paid to at least one, if not

two people to keep their mouths quiet in advance of the 2016 election, we're going to talk

about not only the scheduling of that before Juan Mershon, who is the judge who's going

to be presiding over that case, but also about what the theories of prosecution are going

to be.

What is that case going to look like?

Who's going to testify?

What is that dimension of that case going to look like again in the news?

We're also going to do the same.

That is another deep dive, kind of a microscopic justice look at another case, one of these

other cases.

This is the Mar-a-Lago case.

We're going to talk more about what's in front of Eileen Cannon right now.

She is a district court judge who's presiding over the documents case.

We're going to talk about the motions, the motions that the defense has filed in that case,

seeking to have the case dismissed, truncated in some way reduced.

We'll tell you about those and describe what it is that judge Cannon has in front of

her now and in the future, along the way, along the way we are going to spend a little

of the time talking about the state of the union this past week, a significant matter

having to do with the interaction between frankly three branches of the government, but

at least two, visibly, on your television sets and your streaming media sources between

the President of the United States of America and members of the Supreme Court sitting

right in front of him.

Just yards away.

I'm going to talk about why that's significant, exactly what Joe Biden said to them in

connection with one of their major cases recently.

You know what that is.

That's the dobs case involving privacy rights under the Constitution and then, and then

of course, late breaking news just yesterday.

That is a Donald Trump in yet another case, another case having to do with the civil

judgment previously entered against Donald Trump in the E. Jean Carroll matter.

You may recall well, two trials, two much related trials in which he led that led to the

Donald Trump had not only sexually assaulted her in a department store in Manhattan in

the mid 1990s, prove that the satisfaction of a jury and then also also secured from

him $5 million, $5 million judgment and then also an $83 million judgment.

All of that, all of that resulting in a total judgment of somewhere just an excess of $90

million with interest also ticking away on that.

That news just yesterday, that is that Donald Trump posted the bond, posted bond for that

basically to ensure that he has the right, the prerogative to appeal this case, that judgment

to the appeals court there in New York, finding, finding that hopefully as he is going to maintain

finding that the lower court was wrong, the jury was wrong in making those determinations.

That's going to be his argument on appeal, but in the meantime, he is posting that money.

We're going to talk about what that means, where that money comes from, and of course,

much related is the fact that he also has this huge now approaching half a billion dollar

judgment coming out of the valuations case.

That's a civil case as well, but again, pending in a state court, pending a state court,

the judge there basically giving him a very limited deadline in which to either submit

that amount of money or get a bond in place for that case as well, lots and lots of debt

at the heels, and in the offices right now of Donald Trump, as he goes ahead in all of

these different matters, lots of things on our agenda this morning, appreciate very much

you're joining me for this hour, and next hour is, well, let me give you that phone number,

that special phone number one more time is 414-441-2941, 414-441-2941 again.

Johnny and I delighted to take your phone calls and have you be a part of our discussion

this morning.

Part of our microscopic justice analysis this morning is going to be this major decision,

not at all surprising issued by the United States Supreme Court on March 4th.

That was Monday, and let's begin by talking about the circumstances, the structure under

which this case was issued, one of the first things that you will see if you pull up the

opinion, and yes, indeed, I recommend that you take a look at it.

It is accessible, even though we're going to spend a lot of time talking about its component

pieces in the next few moments.

The first thing you're going to see in that written decision, in other words, Per Curium,

P-E-R, New Word, C-U-R-I-A-M, what does that mean?

What does Per Curium mean?

You will not see, as you will see in many other opinions, as we've talked about on this

radio broadcast, the specific names of justices who have either written the case, who have

concurred in it, dissented in it.

You will see a little bit of that later on in the text of this decision, but the ultimate

decision here is Per Curium.

What does that mean?

Basically, it is Latin, as you can well imagine, many things in the law coming from the Latin

language, not at all a dead language, by decision of the court in unanimous agreement.

That's basically what it means.

And yes, indeed, here you've got unanimous decision, although you've got disagreement,

as we will talk in just a moment or two, among at least four justices, about the extent

to which the Supreme Court went beyond that fundamental agreement, placing Donald Trump

back on the ballot in Colorado, presumably also other places like Maine and Illinois that

have likewise, likewise, toyed with, and we're approaching the removal of his name from

the ballot.

In this case, a Per Curium decision, a specific judge who wrote the opinion not identified,

and as a result of that, what we know is that a majority of the Supreme Court five members

of the Supreme Court, we know who they are, even though their names are not here, because

four others wrote in concurrence and agreement with that opinion, but came to some different

results about the breadth of that opinion.

We're going to spend some time talking this morning about what that opinion means in our

deep dive, our focus on microscopic justice, on this case, Donald Trump versus Anderson,

our discussion coming right up.

And we are back this morning, discussing a lot of things having to do with the United States

Supreme Court, including this major decision, not one bit surprising, based upon the oral

argument of several weeks ago, in this matter in which Colorado, Colorado, at least a

significant body of people, petitioned to keep Donald Trump in Colorado off the ballot

there.

Supreme Court making this decision just this past week, not one bit surprising, based upon

the oral argument, finding that these group of so-called respondents, that's how the court

refers to them, because they're responding to the petition here, the Supreme Court finding

that they're wrong, that the state of Colorado cannot, should not constitutionally remove

his name from the ballot, and how does the Supreme Court get there?

Well, we just spend some time talking about the text of the so-called majority opinion.

It is a unanimous decision, an unanimous judgment, finding that Colorado is wrong, that

the states in our nation do not have the capacity under the Constitution to remove a candidate's

name from the ballot, but they get there in different ways.

The repercurium opinion begins this great, since the group of Colorado voters contend

the section three of the 14th Amendment to the Constitution prohibits former president

Donald J. Trump, who seeks the presidential nomination of the Republican Party in this

year's election from becoming president again.

Colorado Supreme Court agreed with that contention, as we've discussed before in this broadcast,

and it ordered the Colorado Secretary of State to exclude the former president from their

Republican primary ballot in the state, and to disregard any right in votes that Colorado

voters might cast for him.

That's casting the basic foundational position of this case, and indeed the first several pages

of it, 234, are all descriptions of the procedural and substantive history that gets us there,

and in the end, at the top of page four, the Supreme Court announces, we reverse the

decision of the Colorado Supreme Court, and then they go into a significant discussion about

the ratification and the meaning of the 14th Amendment, expanding as they say federal

power at the expense of state autonomy, and thus fundamentally altering the balance

of state and federal power struck by the Constitution.

They go on to say the section three of the amendment restricts state autonomy, but through

a variety of different means, and that of course presages their ultimate decision here.

Goes on to announce, goes on to announce this fundamental notion.

The Constitution empowers Congress, Congress to prescribe how these determinations under

this particular language of the Constitution should be made.

The relevant provision is section five, which enables Congress, subject course judicial

review, to pass appropriate legislation to enforce the 14th Amendment, and so they go

into the section five of the amendment, and they say that's the animating portion of

the language of the Constitution, and so identifying section five is being critical when it comes

to section three, a lot of interplay between the language in the 14th Amendment.

The case they say raises the question whether the states in addition to Congress may also

enforce section three, and again, they conclude that states may disqualify persons holding

or attempting to hold state office, but the states have no power under the Constitution

to enforce section three with respect to federal offices, including the presidency.

And that's the distinction that is all important states have responsibility, authority to make

decisions about state office holders and state candidates, but when it comes to the federal

government, they find that under the Constitution under the 14th Amendment, only the Congress,

only the Congress can do that.

They announce in our federal system the national government possesses only limited powers.

The states of the people retain the remainder, but under these circumstances, under these

circumstances, this particular statute holds.

They go on to describe many of the positions of the Colorado plaintiffs here described

once again as respondents.

They say that the states may enforce section three against candidates for federal office,

and they're going to say that the text of the 14th Amendment unspaced does not affirm

to be delegate such a power to the states, looking again at the text of the Constitution itself.

The terms of the amendment, the procurium opinion says, speak only to enforcement by Congress,

which enjoys the power to enforce the amendment through legislation pursuant to section five.

That's again, the fundamental notion here.

And here is one of the critical findings early on in the opinion in which they dismiss.

They dismiss the positions articulated and advanced and argued by the respondents.

These are the only plausible constitutional sources of a delegation are the elections and

electors clauses, which authorize states to conduct and regulate congressional and presidential

elections.

In other words, here is one option.

Here is one possibility where the respondents, the Colorado plaintiffs, if you will, could

find, arguably could find some basis for believing that the states do have this authority.

But then they go on to shut that down to, and they say, but there is little reason to think

that those clauses implicitly authorize states to enforce section three against federal office

holders and candidates, granting the states that authority would invert the 14th Amendment's

rebalancing of federal and state power.

And that's the key.

That's the key.

They look around.

They say there's nothing else in the Constitution, including the elections and electors clause

that gives the respondents the plaintiffs in the lower court any basis for doing this.

They also say that respondents have identified nothing in any tradition of state enforcement

or section three against federal officers looking to history, a lack of historical precedent.

The Supreme Court, as you well know, spending a lot of time these days, especially when

it comes to firearms cases and other major legislation, directing that the courts, the

federal courts, and sometimes even state courts to determine whether actions taken by

the government is proper or not.

You look to history.

Now, there's an awful lot of disagreement, including my own about that, but they often

harken back to things in the past, sometimes the distant past.

And we've seen a lot of that again as I indicated in the firearms cases, which we will talk about

again, as those cases are decided in June here again.

They look back somewhat to history and they say, you know, we find nothing in historical

precedent to provide, as they describe it, a telling indication of a severe constitutional

problem with the asserted power.

Nothing about history, nothing was suggested in our own historical past that was support

the position by the respondents, the people in Colorado who wanted to keep Donald Trump

off the ballot there.

Instead, they say it is Congress that has long given a fact to section three with respect

to would be or existing of federal office owners, and they describe then a history after

the ratification of the amendment in which that congressional authority is not only identified

but exercised in a major way.

Moreover, they say, permitting state enforcement of section three against federal office

holders would raise serious questions about the scope of that power.

And here is the real key.

We know, we know well from the oral argument that most of the justices of the Supreme

Court were concerned about the so-called patchwork if indeed Colorado and perhaps Maine, Illinois,

other places around the nation.

Also the so-called Colorado lead, some will, some won't, will end up with a patchwork

of ballots, some in which Donald Trump is on the ballots of which he is not.

And there was major concern, frankly, from all sides of the so-called political aisle at

that time about that.

And they identify this as a major problem.

They say with respect to state section three enforcement, the presidency would have initial

additional implications, heightened concerns here.

Go on to say in the context of a presidential election, state imposed restrictions implicate

a uniquely important national interest.

And then go on to say that these conflicts would result in this patchwork.

Right after this, we're going to talk more about what that patchwork is, how it's described,

and then talk in greater length about the so-called concurring justices and the problems

that they had with the outline that I have just described, again, identifying the content

of the five major Supreme Court justices whose words we are now hearing, stay with us

for that important discussion.

We are back talking this morning about the United States Supreme Court, as we often do,

and particularly focusing upon this decision just about a week ago, last week, Monday,

finding that, indeed, Colorado must have Donald Trump's name on the Republican primary

ballot, a unanimous decision in terms of the judgment, the final result, but not unanimous

in terms of the content of the decision.

We're spending some time right now talking about what at least five members of the Supreme

Court not only articulated, but what they said about who can, in fact, enforce the 14th

Amendment just before our recent break.

We were talking about this notion that there could be, as many of the Supreme Court

justices said during oral argument, a patchwork of states out there, if, indeed, Colorado,

other places like Maine, Illinois, around the country, around the country, some 30 different

states looking at various iterations of this issue.

In the end, the Supreme Court says that is a key element of this, conflicting state outcomes

concerning the same candidate, could result not just from differing views of the merits,

but from variations in state law governing the proceedings that are necessary to make section

three disqualification determinations.

That's the key language, and that's what is reflective of the oral argument of a number

of weeks ago.

Among other things, again, this precurium opinion says this.

Some states might allow a section three challenge to succeed based upon a ponderance of the

evidence.

That typically means 51%, just over 50% in terms of compelling evidence, while others might

require a heightened showing.

That's the burden of proof.

Certain evidence like the New Vestor Report on which the lower courts relied here might

be admissible in some states, but inadmissible here say in others are talking about the evidence

rules that could likewise result in different conclusions.

Disqualification might be possible only through criminal prosecution, as opposed to expedited

civil proceedings in particular states, and issue we've also discussed.

That is how, again, do you enforce this if one state were to say only a criminal prosecution

can provide a predicate for disqualification?

Other states say no, a civil proceeding could do just that.

In the end, here is the penultimate language in the precurium opinion.

Supreme Court says this is the patchwork that result from state enforcement would sever

the direct link that the farmers found farmers of framers rather found so critical between

the national government and the people of the United States as a whole.

But in a presidential election, the impact of the votes cast in each state is affected

by the votes cast, or in this case, the votes not allowed to be cast for the various candidates

in other states.

An evolving electoral map could dramatically change the behavior of voters, parties and states

across the country in different ways and at different times.

That description would be all the more acute and could nullify the votes of millions and

change the election result.

Section three enforcement were attempted after the nation has voted.

Nothing, nothing in the Constitution requires that we endure such chaos, arraying at any

time or at different times up to and perhaps beyond the inauguration.

That chaos language, that concern about the patchwork, that in the end is what the Supreme

Court is concerned about.

Now, what does the Supreme Court not say in that precurium opinion written by, we don't

know who, but certainly agreed upon by five members of the Supreme Court, the language

agreed upon, the result agreed upon by all members, but getting there into different way.

What the Supreme Court does not say is whether or not there was an insurrection on January

6th, they don't touch that issue at all, which was a subject course of the lower court

matter.

It was a subject of the Colorado Supreme Court case.

They also do not identify Donald Trump as being responsible for that insurrection.

And indeed, although his name appears here, he is not identified in any way.

The analysis does not revolve around a finding of an insurrection on January 6th, describing

it that way, describing it as rebellion is the language of the Constitution also says,

they don't even come close to that.

That's not even addressed, nor do they place Donald Trump anywhere in the middle of that

process.

Likewise, they don't comment upon the procedural aspects of the lower court, the trial court,

proceedings, the decision made by the Colorado Supreme Court, other than to say, other than

to say that states like Colorado do not have the authority under the Constitution under Section

3 of the 14th Amendment to enforce this.

It's only the Congress and indeed, that's where there is a dissent with a small D between

five members of the court and four others.

Four others are going to talk right now about what three of those four have also said.

We have our two concurring opinions, concurring in the judgment in one case, concurring in part

and concurring in the judgment in another case.

In other words, we agree with the result, but we're getting there, but we want to say

some things about what the majority has said, which, which, with which we disagree.

So we have not surprisingly, Justice Sonia Sotomayor, Justice Illegan, Elena Kagan, and Justice

Katangi Brown Jackson saying, you know what, we agree.

In the first couple of pages of their concurring opinion, they may clear that they agree that

indeed only, only the, that these states do not have the authority here to do what they

are doing.

However, however, they disagree, disagree with the additional language about the exclusive

nature of what the Congress can do.

This is the majority rests on the principles when explains why Colorado cannot take the

petitioner off the ballot state by state resolution of the question whether section three

bars, a particular candidate, the president from, from serving majority explains, would

be quite unlikely to yield a uniform answer consistent with the basic principle that the

president represents all the voters of the nation.

And they go on to say that that notion about state authority provides a secure and sufficient

basis to resolve this case.

Don't need to go any further.

Don't need to, to delve into this issue about congressional authority to allow Colorado

to take a presidential candidate off the ballot, would impair the framers violate provisions

of a federal government directly responsible to the people.

They agree.

They agree with all of that language that in the, in the majority, precurium opinion establishes

that states cannot do that.

And then you have the word yet in a section, a section section of this concurring opinion

yet.

The court continues on to resolve questions not before us in a case involving no federal

action whatsoever.

The court opines and how federal enforcement of section three must proceed and that's

what they disagree with.

That's what the three say.

You know what?

The limitations posed imposed by the majority cannot stand.

Section three simply states they say that no person shall hold positions in offices

if they're oath-breaking insurrections.

Nothing they say in that unequivocal bar suggests that implementing legislation and acted

under section five, once again, this other implementing provision is critical.

They go on to say it is hard to understand why the constitution would require a congressional

supermajority to remove a disqualification.

If a simple majority could nullify section three's operation by repealing or declining

to pass implementing legislation, in other words, they're looking to the internal language

of this particular constitution provision and say, doesn't make sense.

What the other five are saying are brethren on this court simply doesn't make sense.

Ultimately, they say, under the guys providing a more complete explanation for the judgment.

Again, that's invoking the language of the five of the precurium opinion.

The majority resolves many unsettled questions about section three.

It forecloses judicial enforcement of that provision, such as might occur when a party

is prosecuted by an insurrectionist and raises a defense on that score.

The majority further holds that any legislation to enforce this provision must prescribe certain

procedures tailored to section three, ruling out enforcement under general federal statutes,

requiring the government to comply with the law.

All that they say goes far, far beyond what the Supreme Court needs to do.

And indeed, they say this, what it does today, the court should have left undone.

They finally say section three serves an important, though rarely needed role in our democracy.

The American people have the power.

This again is the three who are in disagreement with the extent of the decision.

They say the American people have the power to vote for and elect candidates for national

office.

And that is a great and glorious thing.

I suspect we hope that all the members of the Supreme Court would agree with that.

The men who drafted and ratified the 14th Amendment, however, had witnessed an insurrection

and rebellion to defend slavery.

They wanted to ensure that those who had participated in the insurrection and impossible future insurrections

could not return to prominent roles.

Today, today, the majority, the majority goes beyond the necessities of this case to limit

how section three can bar an oath-breaking insurrectionist from becoming president.

Although we agree that Colorado can enforce section three, we protest.

We protest the majority's effort to use this case to define the limits, the limits of federal

enforcement of that provision.

Because we decide only the issue before us, we concur only in that judgment.

Strong language, strong language, sort of chastising the majority for their extensive opinion

in this particular matter.

And then we have a one page, a two paragraph, concurring opinion by Justice Barrett, almost

as equally interesting and even head scratching.

She says, you know what?

I also agree with the other five who say, you know, what Colorado cannot do this.

But I also come to this notion that the majority has gotten there on a different path.

And she says, the majority's choice of that different path leaves the remaining justices

with a choice of how to respond.

In my judgment, again, this is Amy Coney Barrett speaking alone.

She says, this is not the time to amplify disagreement with stride and seat.

That is a comment upon the language by her fellow justices.

The court, she says, has settled a politically charged issue in the volatile season of a presidential

election.

And then goes on to say this, particularly in this circumstance, writings on the court

should turn the national temperature down, not up.

For present purposes, our differences are far less important than our unanimity.

All nine justices agree on the outcome of this case.

That is the message Americans should take home, fascinating language I would offer to you

that while yes, she joins both the five member majority, if you will, and also also joins

her three others on that side of the fence on this case, and saying the majority has

limited too much the enforcement aspects of the provision of the Constitution itself.

She then goes on to talk about something that's far beyond the judicial command to engage

in an application of the law to the facts and the facts law.

She is now commenting on the impact of what decisions can have in our national landscape.

She's concerned about turning the national temperature down, not up.

And I would offer that there are branches of government, there are the legislature, there

are the executive branch that should be concerned about the extent to which our population

generally has its temperature higher and lower.

They can pass legislation to address that.

They can pass environmental legislation, educational legislation, civil rights legislation, all

kinds of things to change the ways in which our temperature in this country is higher

or lower.

But the Supreme Court and courts are not in that political business.

Likewise, the executive governors and presidents should indeed be concerned about the temperature

among the population, but they do not need to be things that are in the, the ambit of

the Supreme Court and judges, I would offer that that language much criticized, much criticized

out there goes way beyond making a legal determination.

And basically says because we are living in this volatile time when a lot of a language

is incendiary, she suggests, even the language of my colleagues on the Supreme Court because

of all of that, we need to be thoughtful about what's going on beyond the law and beyond

the facts and beyond this case, we need to turn the temperature down.

That's what we are doing here.

That's what we encourage the people of the United States of America to do.

I would offer that while the result is one of those things that reasonable people can

differ on and then the extent to which the Congress does or does not have authority, who

is the authority to enforce Section 3?

The Supreme Court tells us now it's only the Congress that debate will certainly continue.

But when it comes to issues about the impact upon the country of decisions made cases like

Brown versus Board of Education 9 to 0, the court, they are decided that that was with

the law and the facts commanded that separate educational facilities are inherently unequal.

They were not concerned if you will about the impact, that's for the legislature, that's

for the executive branch, and they made that decision based upon the jurisprudential

principles set forth in Brown versus Board of Education.

Donald Trump versus Anderson, that case decided just this past week, more, more on the Supreme

Court, what it's coming up in the weeks just ahead right after this.

You're listening to The Shaw, W-A-U-K, Walkie Shaw's Home for the Town All-Ball Show.

Today morning program, this is the final segment of our first hour talking about the

Supreme Court, this major decision issued in one of three cases involving Donald Trump

that are pending in front of the United States Supreme Court.

We get to those in just a moment or so, something else happened in connection with the interplay

between branches of government article one, article two, and article three on this past week,

and that is the state of the union at an appropriate point during the course of his presentation

to the nation and to members of the Congress, the United States president, our United States

president, Donald Trump, brought up the majority's opinion, reversing Roe versus Wade.

That, of course, is the dobs case finding that there is not a privacy right in the Constitution

with respect to reproductive rights and abortion in particular.

He began to read an excerpt during the course of the state of the union of that decision when he

began a brief aside, and he looked right at the justices who were appearing just just yowards

away from them, all the branches of government they're represented, and he said this, he said with

all due respect, justices, women are not without electoral or political power, and then in what appeared

to be a fairly ad-libbed moment, he added, you're about to realize just how much,

and of course the reaction around the nation and also in the well of the Congress to those comments.

This is not only a visual, a physical depiction, if you will, all three branches of government

right there in the same well of a government office, that is the well of the House of Representatives,

president looking at the Supreme Court and chastising them for their decision and dobs,

saying that you don't appreciate what you have done. You will see, Joe Biden says,

the impact of your decision and dobs in the coming time. Indeed, we've already seen a lot of that

in the States around the nation, an issue plainly not completely resolved. It's going to have

ramifications for many years, a fascinating thing. Don't know if it's unprecedented or not,

but the notion that a sitting president in the State of the Union under the Constitution

required to give this report to the nation on the State of the Union looks at the Supreme Court

justices in his physical presence and says, you don't know what you have done. You don't know

what you've got unleashed, and you will see the impact that women and voters generally have.

What a fascinating civics presentation, a civics event in our nation in a part of the State of the

Union. Let's talk more about the Supreme Court and what's got coming up. Supreme Court has

scheduled oral arguments in March and in April, March 18 19 20 25 26 27 April, April has got 10 more

oral arguments also coming up the 15 16 17 the 22 23 24 and 25. They're very busy. And then they're

done. Then they're done with oral arguments for this term. And then we await the decisions that

are coming up presumably in June. We know that the Supreme Court has 62 cases, including the three

that involved Donald Trump, two of those cases from the come from the seventh circuit, 10 of them

from the fifth circuit, 11 of them from the ninth circuit. What do we know? We know that on the 18th,

on the 18th of March, this case called NRA versus Vula, which is a major case involving the

interaction, if you will, between the first amendment and the capacity of an government regulator

with respect to discouragement of regulated entities to engage with, frankly, it's the NRA.

It's so it's a gun case as well. Vula also being argued on March 18th on March 26th, FDA versus

Alliance for Epocratic Medicine. That's the Mifipristone case. They're going to be arguing about whether or

not whether or not Mifipristone authorized by the FDA for almost a quarter century should in

fact be pulled based upon the conclusions of a federal district court judge in Texas and affirmed

for the most part by the fifth circuit court of appeals. It didn't go quite that far, but limited

access to Mifipristone. That's coming up on March 26th. Then the other two major cases coming up

in April on April 16th, April 16th, the second or the third depending upon area counting it,

this Fisher case, which I mentioned repeatedly, the third major case having to do with the

legitimacy of the statute under which something in excess of 100 protesters, rioters on January 6th

have been prosecuted found guilty judgments entered against them. Mr. Fisher raises this argument

that that particular statute, because it talks about a corrupt way of doing things,

cannot apply to his particular conduct depending upon how the Supreme Court hears that case

and depending upon how it resolves it now, presumably in June. That could have a dramatic impact

upon the criminal prosecution pending down the road in front of Judge Shotkin. Why? Because that

statute is also the predicate for two of the four counts in the election interference case in

that federal case. And finally, finally, on April 25th, the very last day of the court's hearing

oral arguments this term, they're going to be hearing Trump versus United States. And yes, indeed,

that's the immunity case. We've talked a lot about this. You've heard a lot about this.

This is the decision to review what the lower court has done, what the appeals court has done,

finding that indeed the United States America shed the monarchy well over 200 years ago.

And then we do not have kings as presidents, presidents as kings, that there is no immunity.

That's the decision, the very compelling decision made by the lower district court,

made by the appellate court. And the Supreme Court has now taken that case. The impact of doing

that, of course, and we assume we have to assume that all nine justices let us assume. Let us

anticipate that every single justice on the Supreme Court will be saying that no indeed, no such

immunity applies. The significant event, of course, is we're not going to get that decision

until June. And what that means is a practical matter as we talked last week is the Tonya

Trotkin. Tonya Trotkin will not get this case back from the Supreme Court until sometime in

mid, perhaps even late June. She's talked about giving the parties an additional 80 some days in which

to address pretrial matters. And the reality is that that case, which will probably take two months,

maybe even more than that to selected jury, present evidence, have the jury deliberate. She's got

to find that as a district court judge, probably a two, maybe even a three month period of time,

in which to try that case, it brings us right up against the election on November 5th,

maybe even goes beyond it. And awful lot of people realizing now that the Supreme Court's decision

in scheduling, fishery in part, but more significantly Trump versus US going to have an impact on

whether or not the American population ever sees the result before the election of those basic

insurrection, those basic interference counts brought by the grand jury against Donald Trump.

And that is significant not only in 2024, but also also with respect to the jurisprudence of

the United States Supreme Court. In our second hour, we're going to move off the Supreme Court and

talk about what's happening in other cases in Manhattan and also in Florida. I encourage you to

join us for that discussion and be a part of our discussion for for for one for for one two nine for

one here on our Saturday morning broadcast.

Welcome. Grab your favorite morning beverage and join us for morning canolies with Jim Santel.

You don't know me, but I'm your brother sampling the news deserts of the week. Here is your host, Jim

Santel. Good morning. This is Jim Santel. This is the second hour of our discussion on this Saturday

morning. And we are delighted to have you with me and with Johnny also my excellent producer here

in the studios of civic media right now coming to you from the studios of WAUK and downtown

but broadcasting throughout the state of Wisconsin and inviting as always your comments, your

questions, your inquiries, especially at a special number this morning that number is 414-441-2941.

In our first hour, we spent a lot of time doing a deep dive kind of a microscopic review of what

the Supreme Court did its decision, this major decision not surprising to find that Colorado cannot

keep Donald Trump off the primary ballot, providing in direction and instruction if you will for

all of us about what section three of the 14th Amendment does and does not say some internal

dissent if you will, even though agreement on the ultimate result about the lack of state authority

to enforce section three of the 14th Amendment. A lot of justices, at least four of them saying

that the Supreme Court's opinion is much too narrow, much too broad rather and that they did not

have to go in that area, a much narrower approach would have been appropriate. This hour, we're going

to be doing a similar deeper dive, a little bit more microscopic analysis of two other things,

two other cases pending out there. We know that in Manhattan, the next trial scheduled,

it begins on March 25th, just a few days from now, that is the so-called Manhattan catch and kill,

that's the case involving allegations that Donald Trump engaged in an effort to undermine and

to violate New York law when it came to handling financial records, paying off, paying off people

be quiet about his affairs and things in his personal life that would have impacted the presidential

election. We're talking about what it is that the government, Alvin Bragg, the DA is going to

present there kind of a deep dive in what that case is going to look like. If indeed, if indeed,

it goes to trial on March 25th and then also in this hour, we're going to do a similar deep dive,

some microscopic analysis of where that Mar-a-Lago case stands. What's going on right now? What are the

motions that are pending in front of Eileen Kennell? What do they say? What does the defense say?

What does the prosecutors say? Where is that case in terms of its status and what should we expect

down the road? But before we do all of that, again, an ambitious agenda for this hour as well,

before we do that, we are going to take at least one caller right now. Joe, delighted to have you with

me this morning on our Saturday Morning broadcast. Thanks, Jim. I think that this microscopic detail

into one court case is really fascinating and I'm looking forward to your analysis of other cases

that come up. It's really a great way to go to just really dive in headfirst. So I wanted to just

talk about one element that came up in the last hour and that was the language used by Supreme

Court Justice Amy Komi Barrett who used the language that she felt it was important to quote,

turn down the natural scene if you will. You responded that this was a rather fascinating thing for

her to say. I think that's very generous as to use the gracious language. I would say that it's

not part of their purview at all to be concerned about the national temperature and I would

argue that that the insertion of that and the fact that other justices did not respond to it

or more in particular that the Roberts did not respond to this is really not good because

it's taking out what the justices do. It's commenting and saying that taking what the

justices do, we won't do anything to rock the boat which of course is horsepucky because she

was signed on to dobs which clearly rocked the boat. That was 50 years of established precedence

and went right out the window and she was happy with that. So what you are getting to is,

you know, who decides what's volatile times? Who decides how it's turned down? Who decides,

you know, when we can comment in that way on cases and I think it's an incredibly bad precedent

and I mean obviously she's an idiot for bringing it up but I am just amazed that you know that

the chief justice did not look at that and say no don't put that in there that's not what we do

because what does that say is we're coming around the bend to some very major cases

such as the immunity case coming up. Well how's your really volatile? So we won't do anything

that we're supposed to do with the immunity case. We'll just try to turn the temperature down.

That's not your job. It's not just a view. Yeah so I'd be curious to hear a little bit more

reaction from you. On what this might portend since it wasn't slapped down by the

by the Supreme Court you know the chief justice just sort of say this isn't our job. It really

looked juvenile to me and it really looked like mommy says you know kids should behave. Well that's

not your purview either. So excuse me for being rather blunt and I appreciate your more judicious

way of seeing it but I'd be curious to how those comments what that might portend as we're looking

at this immunity case for example. Absolutely. Thank you. I appreciate you. I always appreciate

your comments and I concur in all of that as I indicated in our first hour these are things

for the legislature to take care of right. These are things that people we send to the House of

Representatives, the United States Senate should they be concerned about the atmosphere of the nation?

Yes they should and they should be passing legislation that addresses those kinds of things

in the areas of law enforcement and academics and and commerce and agriculture and environment

all those kinds of things they should be concerned and they should be reactive to what's going on

there. Likewise the president even governors in the state systems should be attentive to

and responsive to the concerns the atmosphere as Amy Coney bear to describe it as as Joe you've

invoked it the temperature of the constituency those are the branches of government decide these

things and I think you make a great point Joe beyond just the impropriety under a constitutional

structure what is the precedent that this sets in terms of at least her approach to the future

when it comes to these other major cases Fisher deciding whether or not half of the case involving

Donald Trump should be tried down the road whether or not he has immunity those are things that are

also raising or lowering the temperature of the of the population generally judges decide

what the law is and they apply that law to the facts of the case and I used in the last hour the

example of Brown vs. Board of Education controversial you bet it was controversial back in 1954

when the Supreme Court reversed reversed decades arguably our entire nations understanding about

education the notion that separate school systems separate institutions are inherently

illegal when it comes to race that was huge was the Supreme Court concerned sure they were because

their members of our government and their part of our national representative uh way in which we

do government if you will is it appropriate for them to have that concern that they themselves

individually might have should that animate the decision about the losses absolutely not

and so you get a nine to zero opinion that case I agree with you Joe this kind of language does not

only open the door for her but others to say well gee if that's the role of the Supreme Court

what does the Congress do then what is the role of the executive branch they shouldn't be in that

business and to your point about the lack of any comment from either the other three who again

took on bridge with took objection to the decision of the majority to indicate that only the

Congress can interpret the Constitution in this area and also the majority itself the chief justice

there's a there's a paragraph at the very end of the precurium decision which the chief justice

arguably assuming that he was the one who at least put his impromotor on this language he talks

about the the opinions written by the others he says so far as we can tell they that is uh

Sonia Sotomayor and Elena Kagan Kachange Brown Jackson and and uh Amy Coney Barrett as

far as we can tell they object only to our taking into account distinctive way section three works

and the fact that section three vests in Congress the power to enforce it those are not the only

reasons the state lack power but they're important ones so he does respond to what he anticipates

is coming in the next pages and this goes to how it is these cases are decided

all of them know all of them know what they have said and that's why in so many of these cases

whether there are concurring opinions to sending opinions you get arguments right on the page

you get concurrences that say I agree with this portion of our overall opinion but I reach it in a

different result you get dissents that say you know what the majority is completely wrong

and it is if they are arguing on the page about the very merits of the case in front of them that

happens all the time you see that a little bit here when Amy Coney Barrett is just is just

exercising others about their language and you see John Roberts also saying you know what

all of you for all of you for our four have failed to understand the breadth of our decision

and the point that you make sure is they've got the capacity to do that nobody nobody responded

to Amy Coney Barrett saying you know what uh associate justice Barrett you have your right to have

your views on this and yes indeed you can print this it is for what it's worth it is not the law

of the case and it will be cited down the road but it's a concurring opinion the law of this case

of course is a precurium opinion of the five member majority but still it will be invoked as a notion

that the Supreme Court should in fact be responsive to and reactive to what's going on out there

that as you indicate Joe I agree with you is a major concern and none of the other justices in

these writings that do in fact go back they exchange these back and forth before it goes to the

printer and before it's released to all of us they know what they're going to say they had that

opportunity they did not do it what is important for what's coming up in June not just in these

other cases but in all the other cases that we have also talked about they're going to change the

way in which we think about our lives we've talked about these major gun cases that are pending

very significant coming up in June we've talked about these social media cases and as I've said

before this major series of cases involving the likelihood that the United States Supreme Court is

going to drop kick get rid of this doctrine called chevron applying deference to agencies

acknowledging the expertise and the experience that is inside our federal agencies and tack upon

our agencies we will see what the justices say in June about all those very important issues

and in many others among the sixty two cases pending before the Supreme Court right now they should

be focused upon jurisprudence and that means they apply the law to the facts the facts the law and

tell us what it is they are aware of the fact that they're living in a world that they're living in a

nation that doesn't fact respond but that should not be animating their decisions and plainly

Joe as you indicated when it came to the dobs decision they had to anticipated the kind of thing

the president the president just this past week

shy to them for that is you have unleashed something you had to know that was happening

and you went ahead and you did it anyway you will see with the power of voters the power of women

is in america all of these things all of these rule of law issues much intertwined much connected

in the history of our nation just this past week more of all that coming up more discussion

a deeper dive into other cases right after this

we are back doing this morning a bit of a deeper dive a deeper analysis into some of these

things going on in our nation right now we spent a lot of time talking about the significance of

this supreme court case we know that there are two more coming up as we mentioned

we've got this immunity case going to be argued before the supreme court on its very last day of

oral argument in april we've got this fisher case it also goes to the legitimacy of the statute

under which at least at least a hundred or more people were prosecuted for the ride of the capital

also the predicate for two of the four counts alleged against Donald Trump by a grand jury in the

interference case that is now before judge Chuck can ultimately but really pending right now

over the supreme court on whether or not this immunity issue applies a lot of focus on those cases

a lot of focus as well on the Georgia case which is again one of the four criminal cases with which

Donald Trump needs to address and be involved in in the future one of the other cases however

among that four is the so-called Manhattan case and of all of them all of them this is the one

that probably has the most likelihood of actually going to trial the judge in that case his name is

Juan Mershon he has said that he will begin picking a trial on march 25 just a couple of weeks from

right now so that looks as if that may in fact happen that case two will take weeks arguably months

to try lots of things to do there and I'm going to spend some time this morning talking about what

we can anticipate what is this case all about because in many ways it is identified as people

as the least serious among the cases is the one that has this salacious aspect to it sort of

indicating that a lot of the weighty issues of the others are not involved in this particular case

and I would object to and I would I would take exception to that assessment that this is not

as significant because in many ways it is also it is also an election interference case

is in many ways as I've said in other settings here on civic media it's also an origin story for

Donald Trump it's the first time that we saw him engaging in allegedly criminal conduct not yet

proven he is provisumed innocent until proven guilty first time we see him engaging in this case

in a violation of at least state law when it comes to trying to influence the election the

hush money case is arguably not just an election interference case but also also politically one

of those that Donald Trump is probably most concerned about because on the eve of this campaign

and we're now into it it's not just the eve anymore we're right in the middle of the daylight

here but certainly is the race ramps up in the weeks and months ahead the notion is the fundamental

notion here is that Donald Trump falsified some business records as a part of his scheme

his plan his design to buy the silence of a porn star to keep her from going public with claims

that the two of them had an affair and as this trial draws near later this month it's going to start

it's becoming apparent that prosecutors are going to likely tell a wide ranging story that yes

indeed is full of some of those tabloid details and some of those headlines and some of those

can additionally be very embarrassing not only to Donald Trump but to his family we're going to talk

about why is it that Alvin Bragg is going to ask the judge mershan there to permit him to present

evidence beyond the narrow financial transactions the hush money case again being prosecuted by the

name once again is Alvin Bragg and it's based upon this tale of extramarital sex these business

records political animations all kinds of things the basics are these and again it's the underpinnings

for the specific allegations in the indictment that's going to trial again Donald Trump presumed

innocent until a jury returns a verdict if ever fighting guilty the waning days of Donald Trump's

first run for the White House we know that porn star named is stormy Daniels threatened to reveal

on a fair that she says she says she has with him now he maintains to this day this never happened

and plainly that revelation itself would have been a scandalous event a development that could have

damaged his campaign that's one of the theories that Alvin Bragg is promoting in his trial

which is coming up fairly soon so according to the prosecutors and yes indeed their star witness

and he's back again his name is Michael Cohen he is the former fixer he himself has suffered a

federal criminal conviction for lying to congress engaging other federal crimes he is going to be one

of the principal hopefully not the exclusive witness before the jury at that time that that

according to Michael Cohen Trump arranged to buy the silence of stormy Daniels and so doing

employees working at the direction of Donald Trump falsified a series of invoices and checks

and ledger entries to cover what was really going on here so on that fundamental basis Alvin Bragg

has recently asked the judge again his name is Juan Mershon who's presiding over this trial to

tell this much broader story about what actually happened here and saying it's not just this

single secret payoff but actually three of them three of them at the time they also want to relate

in detail how Donald Trump used his ties to the publisher of a supermarket tabloid to stop these

embarrassing accounts about him from ever seeing the light of day he's going to talk about that as well

and that is known as the catch and kill process catching the story inside the journalistic world

killing it so that no one sees it Alvin Bragg intends to present that story as well as if

that's worth enough we're also going to hear again we've seen a lot of this before it's going to come

all back all resurrected in this trial prosecutors Alvin Bragg also want to introduce evidence about

the infamous remember this the access Hollywood tape and that's the tape that's serviced in the very

closing weeks of the 2016 campaign and captured again this salacious conversation this conversation

from years earlier when Donald Trump spoke very openly brazenly obscenely about grabbing female

body parts without permission I'm not going to describe this specific language there you know

regrettably that is now regrettably in the history and in the annals of campaign history in America

but that was the access Hollywood tape and and we're going to hear about that again because it's

a part of this broader story that Alvin Bragg is going to tell beyond just the specific financial

transaction now may ask well gee how do you get to do this well all kinds of circumstances

where prosecutors including me in the 30 years that I did criminal prosecution also of

civilization have the capacity with judicial permission by the court to present evidence that

provides context provides support provides the jury with analysis of the central charge

and so Bragg wants the jury to hear about the hush money given also to a woman named Karen McDougal

who is a former playboy model who also claims that she had an affair with Donald Trump again a

similar event now usually under the evidence rules you can't introduce specific events to suggest

that the behavior that you're charged with in a particular case is similar to what you've done

in the past suggesting because you did it before you did it again here that fundamental notion

is basically contrary to the evidence rules but all kinds of ways with argument to the judge

and permission by the presiding judge to get that information in if indeed if indeed it is relevant

to the jury's understanding provides evidence that gives them some context for it and helps them

to explain it overall that McDougal payment between Trump and Michael Cohen was apparently captured

on an audio was recorded by Donald Trump all of that from from the DA he also wants to tell the jury

about a payment reportedly made to fund him deno saggeness s a j u d i and he's a former dormant

at the trump tower in new york to keep him keep the dormant from going public with an apparently

basis allegation the trump and father to auto wedlock child that's also going to be a part of the

presentation when we come back more of what we can anticipate in the trial coming up later this

month in a state court in man hat

this is our continuing Saturday morning discussion of all things government and law and the aspiration

for justice in america we're chatting right now you're doing a deeper dive into this trial that

probably will start on march 25th in a state courtroom in man hat and this is a so called harsh

money case this is as i've described it before is one of the four criminal trials pending against

Donald trump it may well be it may well be that is the only trial among the four actually to go to trial

before the election on November 5th of this year and so it's significant that on march 25th

one march on the judge as indicated he's going to begin jury selection this case and between

today's date and the date of that jury selection the judge is going to be wrestling with hearing

arguments from the attorneys in connection with various motions various requests that they're all

making and we're talking now about those requests those motions those petitions made in this case

by the prosecutor about the extent to which the evidence will include things beyond the narrow

specifics in the indictment including including the payments payment of money's two stormy

Daniels and so among other things as i indicated right before our discussion a break

Alan bragg intends to tell the jury about this payment reportedly made to a former dormant

and the allegation itself apparently is unfounded but nonetheless it provides insight into

Donald trump's approach to anything that would be contrary to his best interest publicly

this dormant apparently came forward with again a basis allegation that trump has somehow

fathered and out of wedlock child with one of his housekeepers unfounded but nonetheless

Donald trump apparently apparently it makes a payment to him to keep him quiet as well

and the purpose of all of this all of this additional language all of this additional evidence

being told about the circumstances is to provide the necessary background to the jury

and to clarify fundamentally what we've always talked about in connection with criminal cases

and that is the motive and the intent as election day 2016 was approaching what did

Donald trump intend to do in all of these instances what was the overall scheme what was his motive

he was trying according to the prosecutors to keep this information from the public domain because

he felt strongly that it would have an impact upon voters going to the polling booths would diminish

the chances that he could be elected to the presidency and so he does all of these things according

to Alan bragg in support of this overall approach that reveals his intent to do this now not

surprised the Donald trump's lawyers are pushing back hard on this and they have asked a judge

marshal to keep Alan bragg from making any arguments that the Donald trump was seeking in any

way to influence the election by squalching by suppressing any of these negative stories and

significantly in an effort to reframe the case entirely which defense attorneys can do that

so part of the process to offer a different set of understandings to the fact finding jury

the attorneys for Donald trump will probably say that he wasn't committing fraud by making hush

punny m of these hush money payments but was instead merely seeking to prevent adverse publicity

about himself from getting out what was his motive it wasn't about the campaign they will say

it was instead simply prevent this adverse publicity about him as a businessman as an individual

from getting out in the public domain they will go on to say as they have already in some of

their motion papers candidates are not required to disclose everything about their personal life

during an election and attempts by a candidate that is the this is what the defense attorneys

are saying to keep certain matters personal are neither inappropriate nor illegal and is on that

basis that the attorneys for Donald trump will ask judge motion contrary to what Alan bragg has

to keep all of this additional evidence this qualifying this context providing evidence from

the jury's view during the course of this and of course the other portion this is indicated the

start is that the exposure of all of this once again the access Hollywood tape the McDougal aspect of

this the dormant all of this but comes back not new in the public domain generally but reminding

people once again as we have not heard since 2016 and 2017 and even some of the years after that

this is all not going to come back underscoring once again this notion that Donald trump had a

personal life that was and is solaceous that is also going to be impact and also the reason why

defense attorneys are going to be arguing strongly to judge march on about not permitting this

evidence to come in these are all pre trial motions all these kinds of things need to be decided

between now and the start of the trial they can also be raised of course during the dependency of

the case itself the attorneys can raise objections based upon relevance and focus but the judges

traditionally will make determinations about these large bodies of evidence in advance of the trial

not only so that everybody knows how long they will take but they're no surprises coming up during

the course of the trial you don't want to have a jury suddenly suspended in its review of the

evidence if you in the middle of a trial as the judge need to resolve this major issue judges

tend to do that in advance of the trial that's what judge machine is going to be doing

between now and the start of the trial in March 25th a small footnote to that and that is that

will always wait to see but when the first juror is in panel there if this case is really going to

trial as we have seen in all of these other cases indicted charge about a year ago none of them

none of them probably going to trial this year anticipate that the March 25th trial will go ahead

but one never knows all kinds of things can happen motions can be filed that for various reasons

interrupt the natural flow of cases going to trial less likely now that that will happen here

but we'll wait to see we'll wait to anticipate the impanement of that jury sometime after the

case is called on March 25th and evidence is presented in April and in May and arguably

arguably into the summertime as well. So we talked about motions we talked about this fact

that the attorneys for both sides have this opportunity in advance of the trial to submit what

are called pretrial motions they have pretrial conferences pretrial hearings and indeed that's

also what is going on right now in the so-called Mara Lago case this again is the case in which

the process special counsel special prosecutor Jack Smith has alleged again in an indictment coming

from a grand jury and where in Florida that Donald Trump not only took but also retained used

bandied about some of these documents some of them classified not all of them to which he had

no entitlement had no entitlement and the status of the case right now is that although Eileen

canon presiding over this matter didn't fact have a hearing a little more than a week ago anticipated

at that time perhaps setting a trial date for that she disappointed a lot of people by saying you

know what I'm not going to issue a decision on that right now previously she said that that case

will go to trial on May 20th case the charges in that case for first filed in June of last year that

date will almost certainly slip and although it's right now still on the calendar she has not told

us with specificity what that new date may be but what she is doing is she is entertaining these

pre-trial motions just like in the Alvin Bragg case in Manhattan the so called hush money the

catch and kill case she likewise is entertaining motions they're going to define the landscape

the geography of that trial the Mar-a-Lago case the documents case whenever it goes to trial which

could be later this year more likely sometime in 2025 after after the November election so one of

those one of those cases one of those motions all about well here's the big one it has to do with

selective prosecution selective prosecution prosecutors in this case in the Mar-a-Lago case

are pushing back on the notion that this was involved in any way with a decision to

prosecute prosecute Donald Trump selectively and differently from others who are similarly

situated how does this come about the defendant in this case the principal defendant not the only

defendant but the principal event Donald Trump saying that he's a victim of selective prosecution

and saying that he was being treated more harshly than president Biden was in an investigation

into his handling of sensitive materials and we've talked about that recently the prosecutors

Jack Smith have said recently that the evidence of potential wrongdoing against Donald Trump

in the Mar-a-Lago case is in their words starkly different in two major ways very different from

the decision not to prosecute the current president Joe Biden very different in two principal ways

that according to the special prosecutor and in the ray of these motions to dismiss this case

against Donald Trump the prosecutors are going forward and saying that there are significant differences

between what is going on here and the decision not to prosecute Biden you recall that the handling

of classified documents was also the subject of another special counsel and his name Robert Herr

he released that very controversial report not too long ago finding that there is nothing here

there's no intent there no charges that can possibly brought and determining that a case a criminal

case cannot be made against the former president we've also seen the department justice did the

same thing with respect to the former president former vice president Mike Pence Mike Pence likewise

the subject of an investigation in determining whether he inappropriately had classified and other

documents similarly the department of justice coming forward and saying no no indication of intent

no reasonably that there is a reason to conclude that there was a criminal basis criminal motive

for those two that is the current president and the former vice president holding on to those

documents and so what in particular does the prosecution say about this selective prosecution

charge this claim by which Donald Trump and his attorneys are seeking the outright dismissal

of that case well prosecutor is working for the special counsel have again said that while there's

some superficial similarities the differences are really actually very profound among other things they

see this the volume the sensitivity and the storage of the documents all point in the same direction

this again from the motions the motion responses being filed right now in the Mar-a-Lago case they say

Trump's conduct was much more serious than that of Joe Biden thus confirming that the two cases

are not nearly identical as the defense states and that there are legitimate reasons for viewing

them very differently they added this they said Trump has shown as not shown rather that Biden's

conduct as described in the her report that is a special counsel report makes him a similarly

situated comparator that is somebody whose whose situation compare one situation to the other

has has not has not shown that Biden's conduct makes him a similarly situated comparator for

purposes of a selective prosecution claim now selective prosecution claims are also notoriously

difficult to prove and the defense understands that completely and the jack smith folks the prosecution

understands it as well because they require defense to show the government effectively discriminated

against the defendants by charging them but not charging somebody who is similarly situated

in like circumstances prosecutors wrote in response to this motion to dismiss the case based upon

selective prosecution that Trump's decision to hold on to these dozens of these highly classified

as if they were keepsakes memorabilia or trophies to store them in an unsecure location

and then reportedly obstructed attempts by the government by the government to retrieve them

including through a grand jury submitting that all of that makes his behavior fundamentally different

and so the comparator the comparison between the Biden situation arguably even the Mike Pence

situation we've got none of that and the Donald Trump situation does not does not in the end support

a selective prosecution claim a defense to the prosecution itself that's what that's what the

prosecutors are saying again it is a heavy lift it's a lot of burden for a process for a defense

attorney to undertake the request by the prosecutors to reject that

that Donald Trump somehow has been a treat unfairly it's only one of several other court filings

brought also by the defense as a part of this motion practice and the prosecutors also seeking

to counter other motions to attack the law he is accused of violating that is the underlying

charge there to question the legality the very legality of the special counsel prosecuting him

to claim that the records he'd been charged with are moving from the White House

belong to him that he had a personal interest in those and again that he is immune from prosecution

when we come back to talk more and unpack those a bit more as well as one of our analysis our

deeper dive are more microscopic view of what's going on there in that case right here on our

Saturday morning broadcast

we are engaging this morning in a more microscopic analysis of some of these big stories coming out

of some of these major cases right now talking about the moral logo criminal prosecution

no clear trial date set although may 20th remains arguably on the docket of the presiding judge

she has not told the attorney she has not told us when this case will actually go to trial it is

significant in terms of its dimension unlikely based upon the number and the series of things she's

got to do decide right now that it will see the light of day before the election either so joining

probably the election interference case probably the Georgia case none of those going to trial

the one once again that may well go to trial later this month is that case in Manhattan but in Florida

in Florida Eileen Cannon has before her these motions one of them charging selective prosecution

unlikely that in a merit based analysis of that motion that a reasonable judge would grant that

motion to dismiss the case selective prosecution a very difficult thing to show there are other

motions also pending in front of her another one of those motions the Trump legal team arguing that

the charges should be dropped because of a claim that the attorney general himself america

Ireland had no legitimate authority to appoint jack smith in the first place and that prosecutors

working for him have no legitimate funding and now noting that there have been many special

prosecutors appointed by attorneys general the supreme court has recognized that authority explicitly

in other cases jack smith and the others defending against these motions have rejected that idea

they said this in their response to that motion about authority to prosecute each argument is

incorrect and neither supports dismissal the charges that were properly returned by a grand jury

in this just reminding reminding america that this case like all the others does not come does not

come from the desk of the attorney general does not come from the desk of a legislator or a president

but rather from a grand jury that trump attorneys also argue that the case should be dismissed because

a law called the presidential records act that law makes official white house files public

property somehow allows presidents before they leave office to designate certain materials

like diaries as their own personal records now we know that that's not the case that all those

records are the property of whom they're the property and the possession interest of the people of

america they argued that trumps sending the files to florida indicated that he was implicitly saying

these are owned by me and and that there was no second guessing if you will of any of this because

he understood those to be within his personal ambit to do this sort of thing of course jack smith

once again pushing a back upon that fairly preposterous in vocation of the law in this case as well

and saying that all of these claims rest on three fundamental errors all of which according to

the documents reflect the view that as a former president the nation's laws and principles

of accountability that govern every other citizen do not apply to him and it was discriminating

between his situation and that apply that that is invoked with respect to any other defendant in court

final motion south there the trump team arguing that again he's absolutely immune from prosecution

because this traces back to his time in the presidency and that of course brings us back to

what's happening before the united states supreme court interesting argument there they may be

arguing that in part the taking of the documents from the white house happened while he was still

the president and therefore he's immune for that purpose but undeniably undeniably the great

majority of the allegations if not all of them read clearly and despositively make it clear that

the allegations happened after he was outside of the presidency and so on that basis alone judge

Eileen cannon has a sufficient basis upon which to deny that motion alone and that would even assume

of course that presidential immunity is such a thing that is what the united states supreme court

is going to be hearing argument on on the last day of its oral argument in april that is what the

supreme court is going to be telling us all about sometime in june that could indeed animate the

decision on this immunity claim also now being raised in maralago in the documents cases well

lots of motions lots of motions pending there of course Eileen cannon also as we have discussed

before has these issues about how to handle the national security documents how do you handle those

cases when classified documents are presented in a public forum which is a federal court all kinds

of things have got to be addressed in a pretrial setting also have to deal very centrally with

this other issue which we've talked about a lot and that the special counsel is very animated

about which is the disclosure of information about witnesses the special counsel has said that

Donald trump has had this history and indeed he has in other cases including this one of intimidating

witnesses of threatening them explicitly and implicitly and the fact process that process has

prompted has prompted a a violation if you will of the fundamental ways in which we try cases

it affects the jury process it affects the jury pool it affects the ways in which witnesses in

particular are inclined to testify and if indeed if indeed the notion goes information is

disclosed in the public domain about who those witnesses may be and where they are located their

home addresses other identifying information they too can be subject to threats inappropriate threats

illegal threats by people including people in the trump ambit and that will have an impact upon

the administration of justice in this trial if indeed they're chilled from testifying if they're

prevented from doing the kinds of things that we'd expect a witness to do which is a testify honestly

completely without fear of intimidation that matter is also pending in front of a judge cannon

she had begun to go down a road pulled back after the special counsel indicated that some

of analysis was somewhat flawed all of this all of this needs to be taken care of a course before

before there is any trial that is open conducted with respect to the charges against Donald trump

again broad charges but significant in that they once again are depended upon showing us of intent

and motive and purpose and that's why the special counsel is pushing back on all of this

that indicated that Donald trump did not did not have the intent did not have the motive did not have

the purpose when he took these documents out of the white house nor did he have that criminal intent

when he used them move them around engage in other things that were contrary and our contrary to

law as set forth in that indictment lots and lots to take on lots and lots to consider when it comes

to the status of all of these cases this morning spending a bit more time as we are going to be

doing in future broadcasts as well a bit more time diving more deeply into the nuts and bolts of

these cases a more microscopic look at the rule of law here on our Saturday morning broadcast

join us again next Saturday for more of this analysis analyzing the significant news events