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come to this very podcast through the miracle of zoom, none other than an Carthage, aunt Rachel area earn any her. You I'm good. I've got I'd, be better if it was ten years ago and I was getting MAC shares or a twenty, eight run rather than for what. I wouldn't have to do ten years of shorter gets the bats. Tat would be the work done, and I guess they wouldn't be a lock out so that b that go in The air was Yankee phantom. He says it's bad. Deciding that did not signing it all, which is which what we ve been doing with other. We did offer a contract a garrison Just now that we have these, are you didn't droplet yeah So we have these arguments Eddie you ve written extensively about them. You come come in and out among real time on on fox and ethics.

The initial point you made on, unfortunately, stuck with me, he's a substantive, serious arguments. We in a mock soda, my or which will do some of you here. I expect an end of a bear, and disagree with the the proportion advocate. There are serious substantive civil argument so that there is at least a corner that remaining in american national life, even though its it, sir, in in this, this small precinct of in the spring quartz chambers yeah. I think that's right, rich and you know I've listened to some of the arguments. this term- and I would say it's not always that way, I mean I've seen the justices get very caddy with some of the advocates I've seen them get a little caddy with each other at times, are usually they're using the advocates for that purpose, to sort of talk to each other through

and I have also seen you don't. Usually. The quality of argument in the Supreme Court is just a superb but every now and then you get somebody who's, not particularly good, you never know young unless you're someone who is in washing watching this all very closely week by week. You don't know what you're going yet- and I I really what we came away, thinking that you know Obviously we have very strong feelings about how the case should come out, but putting aside, I think this was the highest kinder oral argument. The court you know just as chief Justice Robert, was not ridiculously wedded to the clock, I think they had allotted seventy minute spur argument. It went on for closer to two hours. I think it was not.

Until everybody had their peace to say I thought the lawyers. For the most part, there was some pretty glaring as I think in the heat of the moment, but for the most part the lawyers were excellent. The discussion was excellent. The judges were, for the most part, very good, just a good, it was a good bombing was wet. Oral argument is supposed to be, but I think you know that the flip side of that we have to stress its people and its appointed to make it the beginning. Before I heard a word because I didn't happen not just to tell listeners it and viewers it, but to keep reminding myself this at all Falada cases rich, where you hear the oral argument? In your sure the case is going one way and then the thing comes out. You know six months seven months later. not at all what you expected based

on the Euro argument and one of the things I want to call the dog that didn't bark, because it wouldn't be true to say that justice. Kagan was silent. You know she. She certainly I participated in the argument, but, as I said, I I've listened to a number of arguments this, and I ve noticed that she's a much more regular participants. She seemed to me to be the other day I just maybe this is because I have in my mind this notion that, cases actually gonna be decided in a room with Roberts Kagan and be cabinet in it ended it would be a lot of wheeling and dealing in terms of these walking on draft opinions over the next six or seven months. I just started telling that she wasn't everybody knows where she comes out on this case. I didn't think she was as aggressive the questioning

as she has been in other cases, and I just really think there's a lot more going on in this case, behind the scenes than we may see. No doubt say you suggestions that does that's Kagan, leaving room for her herself to maneuver. Yes, Yet I think that's how she deals with. I think that's how she deals with Robert in cases where she's going to deal yeah. Ok, let's hit a few other, the key. moments in the oral arguments and what what they met in a circle back around two two Robertson and you take. what might be going on here behind the scenes. So there is really arc and merit moment where a leader I thought we just yes fantastic. They amplifies sharps tack

nearly back the solicitor general of the United States into arguing that it would have been a mistake for the court to overturn policy to see that fact had a change in order for the court to overturn policy. Obviously, the background to this argument is that the Anti Mississippi side wants to argue well, ok, even if Russia. in case you were agreed. Joyously wrong. You need other factors. Over above that. So so Ok, so plus he was egregiously wrongs here, saying things have to change your new facts out of development or the Ex fifty six years whatever was for a policy to be overcome and and logically that should have said yes, sheep. She didn't cause she's, not a complete idiot, but why did you make it that exchange? While I thought that exchange was very memorable, and I would couple it rich with something that was along the same

lines of rationality, which was when Justice bear it. Put. The solicitor general encountered the same box of having to argue that no no no viability would be a better standard. Then say the second trimester where what the point that bear it was trying to make. That point: is that Bob Viability, just in the jury standard and this all along some of the theme of the argument that you know there's a difference between when the court is doing law and when its doing matches ledge sliding, but a completely haphazard job of legislating, whether just pulling stuff the sky, it very unprincipled way and I that what a lead always trying to show and what Barrett was trying to show was that When you are utterly completely result, oriented

without any principle, or you know, intellectually honest route to get you to where you have to go. You end up having to take absurd positions. but actually cut against the logic of what you say, you're trying to accomplish having effort for the left, what they would like to have abortion on demand that with no limitation as far as a temporary is concerned, in order to get there to rationalize it, they have to pay and that role which is speed. The tree where the route from which all this grows, that there's some intellectually, honest principle, legal stand in that case. That gets us to where we are today. Of course, there's not. So I think what the justices were trying to show. Is that there's nothing here, but your will

and viability is what the last case decided to hang its attack on, so we're gonna hangar had on by ability, in order to tempt down on the idea that we can get rid of something that had previously wrong. You have to now take the position that we have. Watch it be egregiously long for a very, very long time before weaken before sorry. Decisive will allow us to get to work for that again and then they ended up saying something along the lines of you know. Well, policy was just so outrageously, ridiculously extremely wrong man, but you know we we hear that there is. As you know, there are some of the time it seems like there. They want to make an argument for a standard for super precedence. We heard a lot about that the other day, but I thought the super precedent that they were talking about that came out of the argument was blessing. You'd have all the cases that they talked about it.

Only plus plus it is the one that is like utterly completely totally wrong and we can't write anything out of it for rub for these purposes, in the story, decisive discussion, so you know, just think they were trying to highlight- and I agree with you- that Alito did a masterful job of it. How unprincipled what we're dealing with is an that's, because row at root was unprincipled that Casey recognising that role. unprincipled, basically overhauled at bike, keeping it in name only by getting rid of virtually all of the calculations that lead to row in the first place, and we get to this absurd point half a century down the road where we start with something that.

You know we're dealing with a legal precedent in row that has been towering over us for fifty years. That has infected the whole idea of what it is to be a judge that has infected the whole confirmation process for the judiciary. There has utterly politicized. The conference should process, and yet here we are half a century later. No one will walk up to that podium and defended as constitute no law, not a single person will get up there and say this was a correctly decided decision. the only arguments in favour of it are a sort of extreme and in many ways blinkered view of story, decisiveness, that

would allow a precedent that is obviously wrong to stand because it all- and your left at this point at this with this crazy idea, that, the more long a decision is the less we can afford to reverse it, because they ll say we were doing politics and the the insidious none of that is that we are here because of politics. They were doing politics. We have role because they did politics A knave insinuated politics through with the law because of row for half a century now, they're saying you can't reverse it, because people will say we're doing out. So what do you make of it?

The argument that this right is reported right is somewhere in the fourteenth amendment that their substantive due process that as one or both of these advocates against Mississippi, said, or maybe a soda Meyer. I forget you they're they're, all sorts of guarantees of of family life in and aspects of it that r r guaranteed by Supreme Court Jurisprudence debts. Similarly reasoned as row, so yes, it was rightly decided at its somewhere. There and the fourteen amendments yeah, I you know I- I noticed rich- that Euro it's become fashionable to say forty amendment now Get a substantive due process is something that's almost never uttered like the yeah, the free this has never uttered, and maybe,

that's a we oughta tipper had to the like you see, of Justice Scully who so Destroyed the young underpinnings of substantive due process as a concept that people were the hour embarrassed to invoke it now so they'd rather say Fourteenth amended, because at least that sounds like it's coming out of law that you that's concrete met, you can lay your hands on but I think what your highlighting here is the thing that the court is most struggling with bare. It asked a specific question that one that goes right to the point that you just raised where she basically said. Are you telling Us- and I think this was was put the Mississippi Ass Jake our age rather ass. She, but, where, where she basically said, are you telling us

If we really are way that this whole thing has to unravel. All of these were all in all of these things that flow out of this whole idea of privacy that the court used to call right to privacy. that. It was some sort of due process now they prefer to say fourteenth amendment. But we all know what that's what we're we're talking about here and miss city was was quick to see I know now we're just talking about abortion here and world Talking about this one case involving the fifteen weak, the regulation and, of course, their arguing. That role has to go, but they are not saying that you have to take the whole kitten caboodle, whether their basically saying, let's just deal with abortion.

and your roberts, I think, is taken at one step further and saying: let's just deal with fifteen weeks, but you are right that this is a threat that, once you start to pull on it, everything rattles and their smart enough to know that, but accepting that and acknowledging it is? That is something I think that cuts against the idea of doing anything about it like it becomes too big to to do so than about and what Mississippi was trying to basically say, even though that's obviously true as well, let's deal with abortion, let's deal with Rob, that's what's before us so another notable moment Amy coming bear it made this argument. A couple times that their these these laws now, where its its relatively easy to give up a child for

adoption. So if a huge element of the port of harm to women and for their reliance interest has to do with the actual raising of a child and dispose of negative consequences of that. Why wouldn't all that be obviated by a woman, carry a child, a term which which bear it knows more about them alive. We do but yeah sure it is, as it is a burden, but a lie. The advocacy of the other side has to do with the actual burdens of child rearing, and she points out whether there's there's a away to accommodate that. You know it struck me. While this

That argument was going on which barricade does she went back to it? You should probably went back to a three or four times right. It struck me that you know we always talk about viability as an unstable metric, because there's always going be tat, medical technology and as a result, viability is a is a shifting target. So, if you gonna, hang you had on viability as the press, the point in time where the states interest in preserving what they'll and what a year so gently call fetal life, If that's going to be the trigger, that's always gonna be a moving target. The thing is, it's not the only moving target is it so I thought the the

lawyer for Mississippi was very yeah was well prepared on this and may be interesting point that these laws that Bower talked about work they basically started to come in sachet around one thousand nine hundred and ninety eight one thousand nine hundred and ninety nine and there are many of them now, but what that means is that warrant these adoption laws that were that we're talking about it there, but there weren't a widespread amount of them. from nineteen seventy three, when railways decided up until ninety ninety nine right. And, as a result, when the left was developing its positions to defend the abortion right, what through into the hopper, was not only the pregnancy but the burdens of parenthood right. So there's a long history of making that argument. Well, lo and behold,

As when viability changes, your assumptions have to change the law framework change the availability. You know this availability of adoption changed. and, as a result, the argument has to change. So now you know what was what was once a big burden that bum That is not in the minds of people who are on the tab on the approach. Side was something that you know powerfully justified their position with its not only the burden of pregnancy but the burden of parenting, A lotta that slips away as Barrett was pointing out on the basis of these laws.

so they have to change their argument and again, I think it goes back to the original point, which is what they do. What they wanted with row was a right to abortion and they were given that reserve alt and even as came out during the argument when they talked about the the mechanics. actually arriving at the road decision. It was like we're going to come up with this result and then we're gonna work backwards to reason why it's ok and we ve had the fifty years. So when things change, they now look hypocritical because things that were that were powerful arguments on the basis of whatever the legal architecture or the medical technology was at the time they first started. Making them then not only they no longer have the same force.

And this is what happens when you're? Not you know, you're not taking in intellectual ya, be honest position, so I think that's what they're stuck with defending. So I referred to earlier, and I thought Aleta was fantastic. Kapnos was very good as well, and let's hit two points he made, one which is goes to president and he's been besides about this very strongly by the other side who betray him is making some sort of ironclad gearing she'd Susan Collins at because Rowan case, your president's, they just have stand, but he he engaged in a case last year ran re mouse and a very extensive announced, so of what factors go into the regard you should give president and when it should be. overturned and- and it had a very compelling point when he rattled through all these cases, that yet everyone pretty much would

You rightly decided that involved overturning president says that's one cabin up point and the other is. He came back to this repeatedly maybe the cautious have a neutral position on abortion. May the Supreme Court should not have a position by ETA and you at this stage figured out what you don't talk about. This goes to you you're or your point about job. You know pulling this thread and how much a bit on rattles. Imagine if this in court suddenly took the position that cabin Ares arguing, for which I think is the correct position that if the constitution it has nothing to say about something: the courts. You come out one way or the other. It should just you suddenly rich. If they did that, you would think that there that the federal government, by only have limit

powers and who knows what might happen at that point. So I thought that was it. That was a great point unprecedented. It's amazing for them to come out and say that he made this ironclad commitment to two colleagues in particular, who asked did you say, was more Castillo Mc Caskey voting Against them right in front of remember, I think we got it was certainly Collins. Is she a surprise? I form I forget because of the meeting was all she saved his nomination? I think many members she gave a speech and cod, but you know at the time if If cabin I had given her and ironclad promise at that point People orders- I wouldn't have thought very strongly right though he did the game, I mean look, we all know the gains of the way. This game is played right

Democratic nominees have to have to testify at the confirmation hearing that role is in the constitution, and that's that and it's over and that's where we're beyond we get that's inviolate. It's a super president may even be a super duper. President. That's it that's what they have to do and then conservative nominees republican nominees are expected to get in and get in the chair and squirm and basically say. Ah, I respect pressed it in. I know the cases have been decided by the Supreme Court does a whole body of law. Interpreting interpreting

story, decisiveness, and there are a number of factors in which you have to apply in order to decide whether a decision that may have been wrongly made should stand yeah, it's a whole Europe. Basically, they tap dance their confirmation hearings to try to avoid taking a position. And when all else fails, they fall back on me Ruth, better Ginsberg position right, which is a high, couldn't comment on that that might come before me. So it is to the point where The confirmation hearings are port useless, and porches, sheer politics and you don't lie a whole lot about the young about the justice that you did? already now, and part of me thinks that we should just go back to how was it worth wondered, confirmation hearings. As we know em. I use I knew the Serb not long ago, but I think it was baby they

Everything changed around the Post war period. I dont think that a lot in the way of the extensive confirmation hearings before the Second World WAR, and they didn't really become a thing until Europe. Sixty seven and obviously once Bork was doing, they became a much bigger issue than they were before, but I Did you learn a lot about them, but it is ridiculous to say the cabin. I gave a commitment because he certainly he did and bear it did the same thing. She didn't she. equally said you have. If you confirm me, you won't be getting Justice Valea her mentor, for whom she Clark you'll, be getting justice, Baron and she did this she's another one. Who did this whole thing about story, decisiveness and there being a big body of law on it?

I often wonder why don't they pressed these guys are, will bit harder I'd like to see actually big the republican senators do this except they want these dominates to be confirmed rights if they don't want to give them a hard time, but I often would love to see them asked them. You know, just as Thomas who's been on the course for a very long time and is well thought of in a regional list. Circles thinks that if a decision is wrong, we should reverse it. Do you think, just as Thomas is wrong, I've ever had. See them. That would obviously be an easy question for the progressive to answer, but I could see you know the conservative nominees gonna have so you don't look it's it's a gain, a paper, but I think that dumb you'll cabinet did a good job, laying out the the story, decisive principles in the cap.

has there been reversed, obviously young, when Alito did with respect to that with policy in particular really hammered the point home, and I I just I do think that Alito is completely right on it, not at not just a little but the cabin on the way he he put us. I think he's completely right. An ad wailings made this point for many years: Justice golly. I made this point abortions, not the constitution. Now it's just not there's nothing in it that in the constitution that says that you know unborn life is inviolable and you can't have abortion and there's nothing in the council that says, abortion must be made available that its mandatory. It simply not in the constitution and that's it

because the brilliant people who were the framers of our constitution didn't have views on it. after what they had views on and strong ones was the ideas of horizontal and vertical separation powers that you know the federal government in being created had to have horizontal separation of powers in the sense that no branch of the government could agglomerate too much power, but very important to them in, and I think much less important. But if it binds presidency is doing anything that we ought to be talking about more. I think it's it's a fact that he's trying to destroy vertical separation of powers, but what was very important to the framers was there's this whole host of issues that it is the majority

what goes on in life day today that ought to be in the control of the states and the people so that its decided closest to the people whose lives are most affected, and then there is a small array of powers that have to be national powers and they are Reserve to the federal government, but there are enumerated and their limited, and that's it and the reason abortions. Not the constitution is because it was expected that young things like that, and I think this would be most medical issues in general- were going to be the subject of at most state regulation and private action, and it was not going to be for the federal government to be united overarching influence on on all other stuff, and I just think that Cavanaugh is right. If it's not in the constitution, then it's for the democratic process and it for federalism and the Supreme Court order stay. Animal

Oh, let's, let's get her robbers, you you alluded to Kagan and how you might interpret her relative silencer caution in the end the arguments and is its nose? sacred everyone kind of agrees, conventional wisdom, that Roberts was feeling his way towards such some sort of compromise in oh. Why couldn't he asked you just move the line from viability which isn't the real line. I mean they're their huge loopholes like relate term abortions. Why can't you move? That is, as at least the nominal line back to fifteen weeks, he asked one of the council what what's a big harm. You know what we're talking about nine weeks or whatever it is between viability and in fifteen weeks, and it can you, Lee Pile all day, this harm to two women, just just a that increment of

time, but at least in the arguments he didn't get any takers for the idea of a compromise. You you had the pro choice so very adamant that you know it is basically viability and the status quo or or nothing, and but that's not the way. Roberts thanks is clearly he would be at the very least, very open to some sort of accommodation, shorter, and we can be sure it is- is working towards that behind the scenes. What. Where the prospects of that, what what it is, some it is, is fifty weeks just an appalling Serbia, a sustainable outcome for the court, which I think you know there's a lot of this, so many ifs here that it is probably like too many moving pieces to to do justice to our counterfactual but I was gonna say you know

we were still dealing with the court of twenty nineteen, which is a court that Roberts good control. There be much more prospect for what you just described, but And you know if we were dealing with the twenty nineteen court with this case have been accepted in the first place, maybe not in maybe Robert said that much control back then, but they wouldn't taken this case. But the thing I would stress the people is. you talked about, what's going on behind the scenes, and I think that's absolutely where the game is being played, but the other thing, what has gone on behind the scenes up to this point, like are they already agreements under which they took this case in the first place,. And this is to remind people number one. It requires for justices to take a case and then

I've, obviously to work to decided, but often you care for justice is who agree on how a case would come out, but they they won't vote to take the case because they think the other side will win, which is why a lotta cases don't get taken in the first place right. So every even voting to take the cases, a calculation and hear Mississippi, asked the three questions to be resolved and the court only took one of them so Mississippi asked for, the method, the first, why should they wanted? Was the one that the court top, which is basically is the regulation of pre viability, abortions on constitution, which, if it is, then the Mississippi regulation has to go and if it's not-

the yard the regulation can haul, but that means role has been if not completely eviscerated than substantially chipped away, with two other questions they asked for, and they didn't get. One is how do you do this calculation of undue burden under Casey, and the reason that they wanted undue burden to be to be revisited is because Heller said, which is that twenty nineteen twenty six, I think it's twenty night, how our stead cutbacks actually on the latitude of undue burden under Casey as it had been developed? There had been no in future cases after Casey

the point that the conservatives on the quarter when the minority in Heller Stead complained that they had evolved undue burden to be something more like strict scrutiny where, if strict scrutiny apply, as the state almost always lose, its regulation almost always loses so what they did in Heller Step was day. They basically act up what the state would have to show to be able to show that it wasn't posing an undue burden. abortion right Mississippi wanted that to be revisited, the court said no, the other thing they wanted revisited? Was third party standing? This idea that, for example, abortion providers can file suits to challenge abortion regulations even know: they're, not vindicating their own rights. There are doing on the basis of the reported right of the woman under the constitution to have an abortion

That also was a big issue in Heller. Stand and justice. Thomas wrote a long descent, which was mainly about how we ve completely flouted on third party standing jurisprudence by taking this case first place so the conservative position was we wanted. We were, Rematch on Heller's that, basically we want. We want the whole kitten caboodle of this looked. We want to evaporate Casey. We want to get rid of The idea that anybody, beyond the d, a pregnant woman, can bring these kinds of lawsuit. We don't want to just bring a narrow case. We want a full scale. Wholesale challenge of this whole abortion thicket. This whole jurisprudence

Court said now, and they had to be some horse trading too, to decide that they had it. You know. Or justices had about to take the case, and they had about the kid to take the case that way they had a vote to take the case in a way that was not accepting the petition, the court so even before they took place rich, they macro what they said. They would consider. Now it's important for people understand once the court takes the case. They are not bound by what they said. They would take some of the sun Justices and in the history of the Supreme Court. Or per snickey about that and made say that word, you know we're stuck narrowly with the question that we said we would answer and wrong

which is very much in the camp. But the thing is: if there's five votes for an outcome, then there's five votes for an outcome, and if Roberts loses that bet, he loses it. So the question is. With the four that took the case. I can imagine that the progressive judges, the three of them were left case. I can't imagine one of them wanting to take this case under circumstances with looking at a potential six three might get out. Therein are six three minority. Why would they want to take case they'd like to leave abortion as it is right Rikers back to that, I could do if it's only get to be cut back from here. They're, not gonna do better than what they have now. So I have to think that the four votes to take the case came from the conservative side, which means form for them voted to take one question rather,

three. What is that me? What kind of understandings- or they are already going into you- don't whatever deliberations still have over this case, so Andy any impressions before I move on to some other stuff, it happen Since we talk last year at National Review, wants toward the house pessimists on this I'd love to be able to say I think all the railways so atrocious through all the reasons that we ve had so many people have written so eloquently. I mean that the magazine addition that was devoted to row was just one very powerful peace after another, and we ve had great stuff written both around this argument and in real time while it wishes. going on really persuasive stuff it if the right thing happens,

we'll all guy, but I think I would have said that to your rich if we were talking about if this was ninety. Ninety two, when we were happy when this discussion after the Casey oral argument would we probably be having the same discussion, so I always think they're gonna break. This goes back to two, be it a methane at the beginning of the year of say she write, I always if they get a break our heart in the end, and I must say I think that if there is an understanding that this is going to be narrowly decided- and you could see, I thought you could see justice corset rest wrestling with the story,

the argument, because he's basically saying well if we just decide that you're reacting to Robert Sinise's Wallace, this is, if we're going to do fifteen weeks. Does that mean you know you're going to file a case next month, it'll be eleven weeks and then seven weeks- and you know we could go on with this forever, but I have a feeling that we're going to be left with a very ambiguous situation in which the Mississippi statute gets upheld. Road does not get the last Could a grab and we could be left with years strangling. I hope I am wrong about that, but I think that's where we're gone now We accordingly editors right before this and all of us agree that room case it would be overturned between probably wrong so That is so. What did it is that with Charlie things, yeah everyone everyone.

well, whatever I'm unfinished, whatever I finish, reading what of Charlie's pieces? Others, unlike this whole thing, is ridiculous. Why are we even still talking about this, but then you know you listen to this argument. You know why. last time recorded, we were. The jury was getting the arbitrary case. We have guilty verdicts in that case. What are the big take place here, while I think It's a it's a high moment So if you combine this with written, has to the jury system, I mean we're so looking rich hunting week after week we come here. I don't, have a lot of hair left the good thing you have more, but I act I don't have a lot of hair left it that they are at, but you know week after week. It seems to me like we come here and talk about some thing. That's become so functional and so broken in our system, how we ever gonna fix it, and then we The written house jury comes in and

robbery. Jury comes in and you walk. Saying the jury system works. They did exactly what they they should have done and let me just cite from up like inside baseball prosecutor standpoint- I really thought be the prosecutor in the ivory coast, it a brilliant job. In pitching to the jury, how to think about the case- Last thing she said and rebuttal summation and you are he's one at one year, when you getting to deal rebuttal situation as a prosecutor, you get to do it because the prosecution has the burden of proof. That's why they get to go twice. Everybody always that's unfair, but you know prosecution starts behind the only ones who have to prove anything. so they get to go last and it's a great opportunity to go last, because you got to say the last thing the jury gets to hear before they they retire to consider their verdict with the judges,

and the last thing she said to them is I suggest that you work backwards. the indictment and usually prosecutors. Don't do that like, for example, in my blind shea case, I wanted the jury considered count one first, because I thought it was my strongest evidence, their conspiracy to make war against the United States, and I was the one that I had the highest probability convicting everyone on and that, once they voted on that it would become easier to get them on the other charges. In this case, what she said is work backwards, work from below accounts and get up to the intention, martyr and by doing that- and I assume they probably followed her advice- what they would have started with his be aggravated assault charges and then the false impression

charges and then the felony murder charges. So if you, if you ve, already convicted them on aggravated assault, it becomes much easier to convict among felony martyr, that's tied to the aggravated assault and once you ve convicted. One murder. It becomes easier to connect them again on murder. You know so I think that her way giving them a road map to get what the engine was felt for her was was really well done, and the jury ended up resolving the case exactly as they should have, but guy did the shooting Travis Mc Michael the only one who was convicted of the intentional martyr, but everybody was it did on the felony murders and the least, The bowl of the accomplices was acquitted on one of the felony murders, and on the underlying felony charge, where he was only it.

general player, so they clearly carefully poorest out the evidence and they assigned yelled as it as it was proved by The prosecutor and everybody was convicted of what they should have been convicted of and the take away from that I just think, is rich. Why is the justice apartment proceeding with the civil rights case in here, because it's completely unnecessary? First of all, these guys are looking at multiple life sentences in Georgia and the chance that this is gonna be overturned on appeal is minimal, but the the other thing is the Georgia. Prosecution did not suggest

or try to prove that this was a racially motivated murder. The theory of this prosecution was that they had at the the defendant had a basis, maybe to suspect that Aubrey was a property thief, but they didn't have probable cause to make an arrest, a citizen's arrest and therefore their use of force, including ultimately lethal force, was criminal. It was not something you could justify as part of the citizens arrest, so they made a mistake of law in terms of what their authority was, but it wasn't like they. They were out huh the black guy down. They actually thought this guy was a was a property thing and they able looking everyone in a very clear case, without saying it was racially motivated. Now you have this Justice Department prosecution, they want to do it all over again and they have to prove it,

beyond the reasonable doubt that he was killed because he was black, an Indian die but the only thing they say which they don't lay out a single assertion in the indictment that shows that, these guys had racial animals there, the one thing they say in the indictment as they were white and he was black and I think people are to be very alarmed. If that's what, if that's, what you get rake in Europe, motive of racism arises I'll happenstance of that. When there's firstly, a lot more going on here. I just, I just think it's another. glaring example of how politicized the Justice Department has become so, There are two other horrific mass murder cases that are also involve questions of motive. We have a walk Bashar parade, killing, which we ve raised more about, and also this terrible.

school shooting in suburban trade. Yet though, the one thing I'd say about these two rich in Numb allow the lines of what we were just discussing. Is this trend the prosecutors to one to elevate the operation of the mind of these defendants in these horrible cases, rather than you don't just stick with what they did and then try to make that what the cases about is not a good trend, It's not good for the law. It's not good for politics. It's not good for unity in the in the society, just to be concrete about it. As you point out, Darrell Brooks permits this terrible crime in walk. A shaggy streams is Ford Suv through this parade, as we sit here today and this may be stable cause, it's been

Well now I guess it's been almost a couple of weeks. It's this happened, so there's six dead, the some who are still seriously injured, but there are dozens of people who are seriously injured and they have charged him with six council martyr and all kinds of other charges arising out of the people who just injured but not murdered, And it's one of these cases where there is no doubt about what happened Eddie elevators. You know a million witnesses to authors. It's just that one of these cases where there is any doubt what happened and who did it so as horrific as the event is. it's just as Japan to the same degree a terrific. It's also the same degree of how easy it is to prosecute murder. So he's looking at multiple life charges.

They now want to throw in a terrorism, george- and I dont think it Trivialize is at all what happened and walk ashore to say that we would be a bad mistake to to charge services. terrorism, because there's no evidence that it was terrorism as we understand it, there's no there's no attachment of books to any there's. No evidence. these attached to any terrorist organisation? There's no evidence that this was undertaken for the purpose of

intimidating an entire civilian population or a government into changing its policies is it. This was just a horrific mass murder. Attack now have this case in Michigan. This is this kid Ethan Crumbly, he's fifteen seems to be a tormented. Disturb kid is they'll, be parents go out? Why pick the father buys a handgun three days before they? Obviously don't you sure it properly. He gets his hands on it. Loaded brings it to school and shoots up the school he shot about. Thirty rounds has has killed at least four of his schoolmates between the ages of fourteen and seventeen. I think it was the victims. Are But one fourteen year old, young lady, I think one sixteen and then to see thirteen, including one kid who was

football player, who heroically try to put a stop to all this and lost his life doing it? So I mean I just it moves you to tears just to describe it and that's just it people who were killed, then there were seven other people who were wounded, including kids, a school teacher, etc. So another case where there is no doubt what happened and who did it and they ve also gotten his diary so that you know there's a war or social media or whatever it is, but there's no doubt about why he did it on and that it was premeditated these alike. The easiest murder cases in history and both of these guys could live ten lives and not live long enough to do the kind time that they're going to be sentence to it's already. The the prosecutors in Michigan have already announced the crumblies going to be tried. As an adult is going to be treated as an adult

for this not to be a juvenile prosecution, is gonna, be looking at. Multiple life counts, addition to all the other people he wanted. they have already indicted for terrorists, now, there's no terrorism you could. Even you could make an argument now. I should. I should point out that there are only talking about bringing terrorism charges against Brooks and I've looked at Michigan Terrorism, but I'm sorry Wisconsin's terrorism, statute, it's very broad, you know that you could make an argument that Brooks might be chargeable under the terrorism statue which to me makes it a problematic statue. There's no there's no justifying bringing a terrorism charge against crumbling Michigan's terrorism statute specifically requires that if you're going to bring a terror,

charge, it has to be an attack. That's aimed at intimidating a civilian population. That's not achieved, goes into his school and shoots up the school. This is under its an attack on a symbol that on a civilian population as class, a billion population or an attack on the government in order to make a change, its policies were given to the demands of the terrorists. So it's not terrorism case and, if you're a prosecutor, why would you want to make it a terrorism case? Why would you want to bring, for example, there talking about this in the Brooks? Also, why would you bring in hate crimes where you had the opportunity? Because of how straightforward the cases to prove murder in a fairly. You know, linear, easy way.

and instead you want to bring in all these things, which will require the jury to assess the operation of the mind of people who may be very disturbed people who committed these offences, you have a very high probability of getting them acquitted when they shouldn't be acquitted of anything and the other thing which I am I never understand about this, and this As a general comment on hate crimes has been the law of the United States? Since there has been the United States whether its federal law or state law that, at the time of sentencing, a judge, can take into account any relevant factor. That goes to either the offence or the offender, so if hatred some noxious caught and like racism played a role in some mass murder weapon

or some violent crime, I judge can always take that into account in imposing sentence and increased sentence according when you can't go higher than this. It allows, but you can factor racism in if, if it really is a factor, so why would you want to complicate the guilt fades? Why would you want to complicate the jury's task of in guilt by requiring it took to inquire beyond reasonable doubt the operation of the mind of people who are really disturbed people when you can just get them convicted of multiple life terms? And then, if you gotta motivation or you wanna, you wanna analogies it to terrorism or you. What's the sentencing judge? Ok, that's all the time we have. This progress has been produced by the incomparable. Sarah, surely thanks to everyone for listening and thank you, Annie, Mccarthy, Patrick