This is Bloomberg Law with June Brusso from Bloomberg Radio. It's the first time in almost thirty years that the Justice Department has convinced a jury to convict citizens of seditious conspiracy against the United States, convicting two members of the far right wing group the Oath Keepers, of conspiring to oppose by force the peaceful transfer of presidential power before, during,
and after the attack on the Capitol. On January six, Attorney General Merrick Garland vowed to continue the prosecutions over the insurrection as a verdict of this case makes clear, the Department will work tirelessly to hold a countel those responsible for crimes relating to the attack on our democracy. On January six, in a marathon trial that stretched over seven weeks, the government displayed hundreds of messages, call logs, and video footage like this made by Oathkeepers founders Stuart
Rhodes right after the election. We have been already stationed outside DC as a nuclear option in case the attempt to remove the president illegally, we will step in and stop it. My guest is former federal prosecutor Jimmy Grula, a professor at Notre Dame Law School Jimmy. The jury convicted only Rhodes and a top lieutenant of the seditious conspiracy charges. It convicted all five defendants of obstructing certification of the Electoral College vote and various other felonies. So
just how significant is this verdict? I think it's important on a couple of levels. First, I think it's a very powerful rebuttal to the narrative that the January six rioters were so called patriots. What this verdict proves is in instead of patriots, many of these individuals, certainly, these
five individuals that were convicted are criminals. And these individuals have been can evicted of some of the most serious crimes against the government, including two of them convicted of seditious conspiracy, which is second only in terms of its severity and important, second only to treason. And I think the other important takeaway is whether or not the convictions are going to motivate any of the five defendants to cooperate with the government. So all five defendants were convicted
of obstructing an official proceeding. That's a very serious offense that carries a penalty up to twenty years in prison. So these individuals have a real incentive to try to reduce their criminal liability and term of imprisonment by cooperating with the government. So we'll have to wait and see what happens there, and then lastly, whether or not these verdicts are going to encourage others to cooperate with the government.
So there are several individuals that have trials that are pending and again involving very serious felony charges, and it will be interesting to see whether they're motivated to operate with the government as well. The verdicts weren't a slam dunk for the prosecution. I mean they only found too guilty of the top charge, which is really the minimum number for a conspiracy. Yeah, that's true. There are ten counts that the jury considered. The fact that some were quitted,
some were convicted. What a suggest to me is that it was a jury that really took its responsibilities seriously with respect to each count and the evidence as it retained to each individual. So they really called through the evidence and applied the evidence defended by defendant, and in some cases they just found that there was not sufficient evidence beyond a reasonable doubt of an agreement, which is
the central element to establish conspiracy, including seditious conspiracy. Will these verdicts make other defendants more or less likely to try to reach a plea deal. I think they're going to have the effect of causing others to rethink whether they want to go to trial and whether they want to run the risk of being convicted. Now, again, it's going to depend upon the strength of the government's evidence in each of these other cases that are yet to
be litigated at trial. But I think this is sending a very powerful message that you very well could be convicted, and if so, you could be looking at twenty, you know, plus years in prison, spending a substantial period of your life in prison. And so I think it's going to cause a number of defendants to pause and reconsider. I think it's going to cause their attorneys to reach out to them and say, you know what, let's think about this,
let's talk through this. Are you sure you want to run the risk, because if you do, you could very well run the same fate that these five defendants, including Stewart Rhods have with reflected jury convictions. On Monday, four other members of the Oath Keepers are scheduled to go on trial on seditious conspiracy charges because a judge split the trial. So the question is whether a jury will
hold them accountable for sedition. And even though none of them were leaders of the group and that seemed to make a difference. Here you raise a good point, and again it's very important that we not talk about these cases and broad generalities because with respect to criminal liability, it's going to turn on the evidence that is relevant to each defendant. And in this particular case, with respect to Rhodse and Meg's, there was compelling evidence of their
involvement in a seditious conspiracy. So that evidence was largely their own words in various text messages and other communications. So that was the most compelling evidence against them that really, I think caused the jury to find them guilty. So the question is going to be, with respect of future cases and the four defendants in this upcoming case on seditious conspiracy, does the government have similar compelling evidence coming from their own words and their own statements and their
own admissions. And so that's a critical question moving forward. We talked before about Stuart Rhodes being a graduate of Yelled Law School and deciding to take the stand in his own defense. Do you think that helped him at all with some of the charges he was found not guilty of. Well, it certainly didn't. Didn't help him with the most serious church you know, seditious conspiracy. So it's always a risk, it's a major risk whenever a defendant
decides to testify in his own offense. Of course they have that right to do so, but it carries a substantial downside, and that is that the government then is going to be able to cross examine the witness, and that evidence that they used a cross examined could be very damaging against the defendant. And that was the case
with Stuart Rhodes. I mean they confronted him time and time again with his own statements that again suggested that he was engaged in this conspiracy to use violence to prevent the peaceful transfer of power and the certification of the Electoral College votes. So yeah, I mean, it may have helped him with a couple of charges, but I think, to be honest with you, maybe it been of fitted
him with the lesser charges. But you look at what I consider to be that the two most serious charge, or the sedition charge and the obstruction of official proceedings charge, which both carry a twenty years sentence, and he was convicted of both of those. The defendants attorneys said they're going to appeal. Any appellate issues stand out to you, No,
not really, it'll be interesting to see. I mean, of course, the defense council is always going to say that, you know, we're going to appeal, and they certainly have a right to do so, but you're really, in reality, it's it's very rare and kind of extraordinary where the Court of Appeals will find that there was prejudice at the trial that would justify overturning the conviction of those cases are very rare, and there's nothing about the proceedings in this case,
no major issue, no major controversial issue, a major procedural or of an injury issue that would cause me to believe that any of these convictions are going to be overturned. Throughout the trial, prosecutors highlighted the defendants links to key allies of former President Trump, such as Roger Stone Alley, Alex Ender, Michael Flynn, an attorney Sidney Powell, and Rudy Giuliani,
and Rhodes. Attorney James Lee Bright said he expects the Justice Department to take this mixed verdict as a sign to move full speed ahead with prosecutions against others allegedly involved in planning January six. Do you agree with that? Yeah? I do. I think at the end of the day, even though it was a mixed verdie and the jury didn't convict all defendants and all charges, the reality is this is still a major victory for the Department of Justice. And I don't care how you try to spend it,
you can't spend it away from that result. And so I think it's certainly going to encourage and in bolden the Department of Justice to move forward in a very aggressive manner. And then with respect to the cooperation, you know, the question is, well, what evidence might these five defendants or other defendants have that would be of value to the Department of Justice. So do they have valuable evidence against Roger Stone as a member of the conspiracy to
commit sedition? What about Steve Bannon? What about Michael Flynn? What about Johnny Man. I do think that someone like Stuart Rhodes might have valuable, credible evidence to implicate these individuals and perhaps others in conspiratorial conduct. The question always ends up being will Trump be prosecuted by the Justice Department in this case? The defense lawyers said that nothing in all the information they got implicated Trump. Yeah, that's
that's a very good point. It's a very good question. And so we don't want to read too much into these verdicts, and so well, again it's a major victory for further Department of Justice. I mean, I still think there's a long ways to go in terms of establishing sufficient evidence or in criminal charges against former President Trump, at least based upon the evidence that's been made available
to the public. And even if Stuart Rhodes decided to cooperate fully cooperate with the Department of Justice, then the question is, does he have any any evidence, direct evidence, credible evidence that would directly implicate Trump. And that's a big question mark, and you know, I wouldn't want to
speculate on that point. So for those that say, oh, well, now you know this verdict is really going to open the door to bringing criminal charges against former President Trump, I don't think we're there yet, and I think that at this point is premature to make those those types of claims. At the press conference, there are questions for Attorney General Merrick Garland about whether having a special counsel
appointed is slowing down the investigation. That's a question that's been posed so many times and is there a real rush here? Well, the problem is is that we're now close to two years, you know, from the January six insurrection, and now with the appointment of a of a special council, I don't think there's any question that it's going to delay the investigation, which of course is going to delay
any possible criminal charges. The real question for me is how long as the appointment of special council going to lay the proceedings? And it could be substantial, it could be a substantial delay and and and the reality is, I mean, we may not have a decision one way or the other even up to elections. I mean, it's
it's conceivable. And I think that as we get closer and closer to the election, and of course, if former President Trump is the Republican nominee, I think that the Department of Justice is probably going to be even less inclined to bring criminal charges that would influence certainly the the outcome of the presidential election. And so I think this process is likely going to be delayed for a
significant period of time and maybe even beyond election. It seems like they could move forward on Moral Lago, on the Moral Lago documents, because that's a sort of confined investigation. Yeah, I think a couple of things. So I think that's an excellent point. Coupled with, you know, maybe where the public is focusing too much on the Department of Justice investigation, and maybe in terms of criminal charges being brought, you know, sooner rather than later, those are going to be coming
from state jurisdiction, stuff from the Department of Justice. So we may be looking at criminal charges coming out of Georgia, criminal charges coming out of New York, you know, before any federal criminal charges, if any, are filed by the Department of Justice. So maybe that should be the proper focus. Finally, there was a question about the January six Committee not giving all the transcripts and information to the Justice Department.
What is their motive for holding back on those There's a couple of concerns, are I suspect, and that is, you know, maybe there's some concern that if these documents, these transcripts or discloses, somehow they may be leaked, and that would would interfere and obstruct the Congressional January six Committee investigation. So but again that that that's very speculative, you know, kind of kind of looking to, you know, what's the justification, trying to come up with some explanation
for that. But on the other hand, what trouble to me too is that why is an Apartment of Justice having to rely upon a congressional committee to assist to them in their investigation. Why is it that the Congressional committee is taking the lead on this rather than the Department of Justice should be the other way around. Should be a Department of Justice that should be moving forward at at a more assertive, aggressive manner with respect to
these serious, serious allegations. They shouldn't be reliant on on any congressional committee to assist them in their investigation. I mean, look at the resources, look at the look at the manpower, look at the the assets, you know, the FBI and d o J prosecutors that are available to assist in this investigation. And so I I don't find very I'm not very sympathetic to d o j's criticism that, oh, somehow their investigation is being delayed because the January six
Committee is not fully complying. They should be taking the lead on this, and they shouldn't be relying upon a congre national committee to do their work. Good point, Thanks so much, Jimmy. That's Professor Jimmy Garule of Notre Dame Law School. The Senate has passed legislation to enshrine federal protection for same sex marriages, with a bipartisan vote that demonstrates the dramatic cultural shift in this country on the issue.
The six to thirty six vote on Tuesday was a victory for Democrats, who have raised concerns that the conservative leaning Supreme Court could overturn the right to same sex marriage in the same way that it overturned the constitutional right to abortion in the Jobs decision. President Joe Biden has repeatedly expressed concern over the implications of the decision. The reasoning of this decision has an impact much beyond
row and to the right to privacy more generally. Joining me is Michael Dorff, a professor of constitutional law and Cornell Law School, to talk about his recent article, Well the Supreme Court respect the Respect for Marriage Act? Explain why despite what Justice Alito wrote in the majority opinion in Dabbs. You feel that Justice Thomas was correct that
the logic of Dobbs threatens O Burgha fell. The primary argument offered by Justice Alito and the majority opinion in Dobbs is that abortion was not deeply rooted in history and tradition as a constitutional right, and therefore Roe v.
Wade was not just wrongly decided, but egregiously. So. It's true that when he comes to distinguishing other rights, he says that those other rights do not destroy a human life or a potential human life, but that distinction is something of a non sequitur, because that's not his primary basis for rejecting the right to abortion. The primary basis for rejecting the right is the lack of deep historical roots.
And one could certainly say the same thing about same sex marriage, and for that matter, other rights such as interracial marriage, such as contraception, etcetera. And therefore Justice Thomas I think, does have a point when he says in his concurring opinion, I agree with the majority, and we should apply this same rationale to those other precedents and overrule them as well. As you point out the justices in the Dobbs majority who were on the court in Roberts, Thomas,
and Alito all dissented in O. Burger Fell. Does that give us pause to think that they'll be ready to overturn O. Berger Fell? I think probably not. With respect to Chief Justice Roberts, who I should say I characterized in a column as in the Dobbs majority, and he was in the adopts majority with respect to the outcome, but he didn't join Justice Alito's opinion. And more general, I don't think Chief Justice Roberts is especially opposed to the outcome of A Burgher felt. He is uh seemed
to have made his peace with it. I do think Justices Thomas and Alito would be prepared to overrule A Burger Felt. Certainly. Justice Thomas said as much in his Dobb's concurrence, And while Justice Alito didn't say that, I think that all he was saying was that this case doesn't overrule a Burgher felt. If enough of his colleagues were willing to reconsider it, I don't doubt that he
would be in the majority to overturn. Did Justice Thomas mentioned interracial marriage when he was talking about cases that might be reversed? He did not, But I think Justice Thomas would say, as probably most of the justices in the majority would say, that the right interracial marriage recognize in Loving against Virginia can be independently justified as a
matter of equal protection. So Justice Thomas has said that he doesn't think there's any constitutional right to marry at all, but I think he would probably say that if the state does recognize marriages, it can't discriminate on the basis of race because that would deny equal protection. So I don't think that interracial marriage is really at risk because it's independently protected by a different constitutional right. Now, explain what the Respect for Marriage Act does. The Second Marriage
Act does three main things. First, it says that the definition of marriage for purposes of federal law, for example, federal income tax law, depends on whether a couple are married under state law. So if a same sex couple is married under Massachusetts law and they live in Massachusetts, then on their federal taxes, they're married for federal purposes.
The second thing it does is it says that even if the state doesn't want to recognize same sex marriage on its own, it must give recognition to same sex marriages of people who were married in another state, and that includes both couples who lived in another state where same sex marriage was legal and then moved to the new state. Let's say they moved from New York to Louisiana.
If Louisiana were to outlast same sex marriage after a burgher Fell were overruled, they would have to be treated as married by Louisiana, and so would a couple from Louisiana who went to New York to get married there. So, in that sense, it effectively makes it possible to have a same sex marriage anywhere in the country, at least if one is willing to travel to another state to get married and one has the wherewithal to do it.
The third thing it does, and this is different in the Senate version that just passed from the original House version, is it includes a provision that allows nonprofit religious organizations to decline to provide services, accommodations, goods, et cetera to the wedding that of a same sex couple. The Respect from Marriage Act, why doesn't it require states to recognize same sex marriage no matter where the marriage is performed. Probably because it's not clear that Congress has the power
to do that. The powers of Congress are set out in the Constitution, mostly in Article one, Section eight, but a few other places, and family law is generally deemed a matter of state law that is reserved to the states by the Tenth Amendment. So Congress probably doesn't have the affirmative power to create a nationwide law of marriage in the same way that it doesn't have the affirmative power to create a nationwide law of divorce or child
custody or any of a number of other things. That's not to say there isn't federal power in the area, right, And so when federal power is being exercised, as for example, with respect to the tax code, and it implicates marriage, then the federal government can step in either with its own definition or as under the Respect for Marriage Act, and indeed under the current law by accepting the state definition.
And why doesn't the full Faith and Credit clause require states to recognize marriages performed in other states even without this new law the r M A. Well, arguably it does, but there has long been a recognized exception to full faith and credit not expressly included in Article four of the Constitution, which is where that clause appears, but recognized by courts that states can refuse to recognize marriages and other provisions of state law where it violates the state's
own public policy. To give us you have a relatively uncontroversial example. Imagine that a state recognizes child marriage, as California actually does, with the consent of parents. And so you have a twelve year old or a thirteen year old who's married in California, and then they move move to a state that sets as a minimum age for
marriage sixteen or eighteen or something like that. The state would be entitled to use its public policy exception to say, well, you might be married in California, but here we regard that as against our public policy. So the key way in which the r m A is lacking then is that it doesn't give the protection that oh Burgherfel gives two marriages performed anywhere in the country. Yes, that's right.
It doesn't mandate that every state legalize same sex marriage performed in that state, but it effectively reproduces much of that except as I say, and this is perhaps a pretty big exception, except for couples who can't afford to travel to another state, potentially a distant one. Because states tend to clump geographically with respect to social issues. So if they can't afford to travel to a state where the same six marriage is recognized, then they can't get
married in their home state. So in that sense that that is a big difference. So now that the sane focus of your piece is whether the Supreme Court would respect the Respect for Marriage Act, So tell us about your conclusions there. Well, my conclusion is that if you straightforwardly apply the existing precedent, the answer is yes with respect to all three of the key elements of the r m A. First, Congress has wide latitude to define the meaning of terms in federal statutes, and sometimes it
expressly does that. There's an actually a federal statute that goes by the name of the Dictionary Act that defines various words in all federal statutes unless particular context suggests otherwise. But it's also quite common that federal law will piggyback on state law in the way that the r m A does. I think there's a very little chance of
the Supreme Court would say that that's unconstitutional. I think there's also very little chance that the Court would say that the provision giving religious nonprofit organizations are right to opt out of providing services is unconstitutional. Indeed, the only way this issue would arise is if the Supreme Court overrules a burgher Fell, and if a court that would be willing to do that would welcome such an exception.
The only place where there is the tiniest bit of wiggle room, I suppose, is with respect to the obligation of states to recognize out of state same sex marriages. And they're most of the cases involving limits on full faith and credit have involved divorced and there are other contexts in which Congress has exercised its power to, as it says an article for decide the effect of full
faith and credit or out of state acts. But there's not a whole lot of law on that, And so one could imagine a sort of willful Supreme Court that really really doesn't like same sex marriage, denying Congress the power to mandate interstate recognition. I don't think that's likely. I also don't think it's likely that the Supreme Court
would over rule a burgher Felt. But I make that judgment based mostly on the psychology of the particular justices, And if I'm wrong about the psychology with respect to their wanting to over rule a burgh Felt, I could be wrong about how faithful they would be to existing precedent regarding full faith and credit. Tell us a little bit more about the psychology of the different justices. Well, you know, what we're really asking is to what extent is oh burgher Felt a reflection of the values of
the justices. I think it's fair to say that when Chief Justice Robert's dissented in obergha Fell, he wasn't saying and he wasn't acting on a view that opposes the same sex marriage as a policy matter. I take him at his word when he says that he thinks this is probably, you know, a perfectly fine development, and he has he has no difficulty with it. To put it differently, it's not really a culture warrior. He was dissenting on
jurisprudential principles. On the other hand, I think that some of the justices, especially Justices Thomas and Alito, regard same sex marriage in much the way that other social conservatives do. That is, they oppose it, and so they would think that it's not just wrong as a matter of interpreting
the Constitution, but that it leads to bad results. Now In deciding whether to overrule a decision, the Court takes account of how well reasoned the case was, but also somewhat intangible factors, like what they think of the prior president, whether they think it's a good idea bad idea, of harmful effects not harmful effect. On the current Court, I certainly count Chief Justice Roberts and Justice Gore Such as
being perfectly fine with same sex marriage. I say that about Justice Course Such because he wrote the opinion of the Court in the Boss Dot case a couple of years ago, holding that the Federal Statutory Employment Discrimination Statute forbids sexual orientation discrimination and gender identity discrimination in virtue of its prohibition of sex discrimination. So I don't see him as having any kind of a beef with same sex marriage. And I think I make the same judgment
probably about Justice Kavanaugh and Barrett. So I really only count two and maybe only one justice who are itching to over rule oor burgher Felt. But as I say, what I've just done is to sort of analyze the individual justices based on what I infer are their normative preferences, rather than just giving you an account of the logical implications of all the legal principles. And that's what I mean when I say this is a kind of psychological rather than a strictly legal analysis. So let me ask
you another psychological question. Perhaps there's a great fear since the dabbs this vision that the super conservative majority on this court is going to lay waste to precedent in cases this term from you know, affirmative action, the Voting Rights Act giving state legislature's unprecedented power to up end federal elections. Do you think that people are right to be concerned? Yes, in each of the three cases you just identified, they're actually four because there are two affirmative
action cases. I think that it is not only possible but likely that they will reach very conservative results. I think they will forbid all or almost all race based affirmative action. I think they will further constrain the Voting Rights Act. And I have somewhat less confident and I therefore I'm a little bit more hopeful with respect to what they're going to do in more against Harper, the
case involving the so called independence date legislature theory. But I know that based on what various of the conservative justices of in other contexts that they're at least sympathetic to some version of this idea that a state legislature can decide for itself how to allocate its electors in a presidential election, or, as in this particular case, is involved, gets the final say over the drawing of district lines, notwithstanding the intervention of a state supreme court based on
the state constitution. One last question. A New Market Law School poll finds only of adults approve of the job the Supreme Court is doing, while fifty disapprove. But those approval numbers are actually up a bit from September where approved and six disapproved. What's happened between September and now to lead to a bit more approval of the court. Public opinion polling about the Supreme Court is notoriously weird because people don't have a lot of information about the
Supreme Court. They often don't really understand and the meaning of cases. If I had to guess, I would say that the decline in disapproval of the Supreme Court reflects the fact that more time has elapsed since the Dawb's opinion, which was the last very salient mention of the Supreme Court. It's also possible that it reflects us about affirmative action. Affirmative action has been unpopular for a couple of decades now, so that even blue states like Michigan and California number
of years ago forbade it by ballot initiative. So insofar as there was news reporting that the Supreme Court is considering making affirmative action unlawful, I can see how that would lead to a slight uptick in approval rating for the Court. Thanks so much, Mike for those insights. That's Professor Michael Dorff of Cornell Law School. Remember you can always get the latest legal news on our Bloomberg Law podcast.
You can find them on Apple Podcasts, Spotify and at ww doul you dot Bloomberg dot com, slash podcast Slash Law. I'm Jim Grosso, and you're listening to Bloomberg