Chaos in the Criminal Courts

the case of Jose Javier Rivera Bernard Sure. So this is a case where a defendant is in a situation that has become a somewhat common and illustrative of what decendants are facing in this COVID nineteen era. So this is a case where the defendant is facing federal drug charges, serious charges. He's detained pre trial, and he's facing a dilemma of do I ops for a virtual hearing or do I still wait longer in jail until I can

get a real hearing. Now, his lawyer is raising the issue that he doesn't want a virtual hearing because he can't properly challenge the credibility of government witnesses, and so it's his dilemma because he can either get a hearing that's really, in his view, a half measure of what he's entitled to. On the other hand, though he's sitting locked up in a place where is really not safe to be in jail decays because of the coronavirus. We hear a lot about defendants being released or getting deals

to get out of prison because of COVID. In this case, RIVERA. Bernard is in the Metropolitan Correction Center. Isn't there any way for him to get released prior to his hearing. It's possible for a defendant in general to get that kind of release, and we have seen some defendants getting released, but the reality is that it's just not as many

people getting released as defense attorneys would want. And so the reality is there is this situation where a fair amount of people are sitting in jail, detained pre trial, awaiting trial, and they're essentially sitting ducks exposed to the coronavirus. And it's not just an issue in the jails of the defendants who are exposed to this, it's the correctional officers who are going out into the community as well. And so you can see how this becomes a problem really,

not just inside the prisons but outside as well. And is this a problem in prisons across the country, is it more so in big cities. Well, it's sort of. It's similar to the way that we're seeing different reactions to how the virus is playing out across the country. It's somewhat true in the criminal justice system, but on the whole when it comes to the coronavirus across the board, really the prisoner jails is just simply the worst place

to be. It's up there with nursing homes. Those are really two of the institutions where we've seen the coronavirus make its hardest hits. And so really just by the sign, it's almost if you are designing a place where a virus like that could thrive, a prisoner at jail would be what someone would want to design. Really, So you talked to a lawyer, Michael Diamonds, the uniformer prosecutor, and he said, courts are overwhelmed. They don't know how to react.

The tried and true method is keep everyone in jail and we'll sort it out. So is he saying that it's the exception rather than the rule that people are getting released because of COVID. I think that's definitely right, because it's a situation where the courts are faced with really in no good choice of they have these cases

that they want to move along. They have people that are detained, sometimes on very serious crimes, homicides, things like that, and so obviously every defense attorney wants to get their client out, but it's not always that simple, and so it really is a matter of in a situation like this, like in general, in the criminal justice system, when push comes to job, it's usually the defendant who winds up staying the pained. At least that's how the defense attorneys

are seeing the situation. I was struck because one defense attorney you talked to said that instead of working on the case, all they're doing seven is making bail applications and compassionate release applications and not really getting to you know, the nitty gritty. Well, that's right. I mean, the system itself is kind of at a standstill. So it's not like cases are moving along anyway, at least not in

the way that people want them to. And so if you're an attorney and you have a client who's detained pre trial, really that's your main job is trying to get them out. And again that's something that's true even in quote unquote normal times, But just like in every other aspect of life, the pandemic has exacerbated that and brought it even more to the forefront of what people are focusing on. Looking at this through Rivera Bernard's case, his lawyer said the it's difficult to prepare for cases

because he can't communicate with him adequately. It's very limited. I didn't realize it was that limited. The amount of time they can communicate with their lawyers. Tell us about that. Again, this is something that is different in different facilities across the country. But if you have a jail it's in lockdown because of COVID, then that means in turn that a lawyer really can't get in there to communicate with

their client. And so sometimes you can communicate by phone, but when you're talking about really important issues and really serious discussions, clients not necessarily going to feel comfortable talking about that over the phone. And if you have luminous documents and evidence to review with a client, forget about it.

That's not going to happen in any meaningful way. And so at the same time as these trials are being pushed off essentially indefinitely, it's almost impossible to meaningfully prepare for them at the same time, and so you're seeing

that two different degrees across the country. But if you're in an air aware there's a really serious COVID situation, that's just going to be compounding the issue because the trial is going to get delayed and it's something that you can't even really meaningfully be prepared for, and it's really difficult to establish a relationship with your client in these kinds of circumstances. Sure, so, even if it's a case that you had going into the pandemic and it's

still going on, that's challenging enough. But a lot of times lawyers are coming into a cage new maybe there's a new lawyer that needs to be introduced for whatever reason, and so in a normal situation, a lawyer might actually meet their client in person at least eventually. But now when these relationships are starting over the phone like any other relationship, it's not going to be the same as it is when you can actually see someone in person.

So that's just yet another layer to this that makes it difficult just to carry on the normal life of a case that we would see in normal times, also investigating a case before where the trial actually happens, where you have to talk to witnesses and you know, see how your case lays out, and how do they investigate during COVID Sure, And I think that point is important because it's important to point out that this isn't just

an issue where the defense side is suffering. Prosecutions are having issues too, including in the first instance, being able to conduct investigations and prepare witnesses and victims and things of that nature. And so obviously you can't just walk up to someone on the street like you put in

normal times. It's tough to travel among the different states and especially out of the country these days, like which is necessary, and investigations both on the prosecution side and on the defense side after a charge is brought, and so really it's it's really just a complete breakdown of the system on all sides, and it just is not functioning like it normally would, including things that you take for granted, like just being able to walk down the

street and fastitudes. Are there any trials actually going on right now that you know of across the country, state or federal. So it's interesting and this mirrors what we're seeing in different states coronavirus responses across the country. We've seen some trials start up, but then as cases go up, they're shutting them down. We're seeing this mirroring the general states reopening. We're seeing some states try to opt for

virtual proceedings, which create their own issues. And so we have seen some movement trying to get trials started in cases where in areas where the coronavirus has been less impactful in the area. But on the whole, these things just aren't happening, and if they are, they're not happening in the way that people want them to. Several lawyers who talked about the difficulty of holding a trial. If you did decide to hold a trial, you know, how would you keep six feet away from everyone so much

is in the face of someone. How would you be able to cross examine someone was wearing a mask. Have any courts dealt with this yet? Well, courts have dealt with it um but people aren't sure that any court has dealt with it in exactly the best way. And that's not to say that there's a good answer out there, and it really raises all these issues of little things again that we would take for granted in normal times.

I mean, if you picture a client, if you picture a trial in your mind, and you think of a lawyer and a defendant sitting at a table, or a prosecutor and their witness sitting at their own prosecution table, the image in your mind is of a lawyer with their hand over the client's shoulder and their whispering back

and forth to one another. But if you have to stay six ft apart, something as simple as being able to communicate in court during a trial in a time sensitive manner, that's not something you can do if everyone's abiding by social distancing restrictions. So something as seemingly small as that becomes a huge issue. And so something you mentioned too, like cross examining with a mask done. It

all comes down to credibility. And so if you're not able to cease somebody and interact with them in that way, then it really just changes the whole tenner of the process. Is it New York? There's one court system that's using closed circuit phones to for the lawyers to talk to their clients. Sure, and this is an example of just different courts trying to adapt to the situation as best

they can. One example that I came across was in the Southern District of New York, which covers Manhattan, to address the problem that I just mentioned, they have a situation where there's a closed circuit phone where a client can be on one end and a lawyer to be on one end, just on opposite sides of the same table, and they're whispering into their respective phones. And so it's a situation that, again it's perhaps not ideal for everybody, but it might be better than the alternative of not

being able to really communicate in real time otherwise. And one lawyer you spoke to said, what probably would end up happening is you just say, forget the six feet between you and your client, and you just close the gap and go for it, right, And that's the problem. And again it's stuff we're seeing all over the country and all aspects of life, but just apply here now

to the court system. When push comes to shove, you know, different people are going to react differently, and so if you're a lawyer and you're taking your job seriously, are and it's a situation where you think it's really important to communicate with your clients, but you have to reach this six foot rule. You know, different people are going to react to that differently. Some people are going to maybe hold back and maybe that winds up harming their case.

Some people are gonna not hold back, and maybe that winds up harming their health. So we can see how this is just a situation that's evolving and does not have any great answers, and there's really just no end to it in sight, because we're seeing cases go up and go back down, just as with every other aspect of life. Have any lawyers told you I'm not going to take any extensions any more. Extensions I just can't because my case has reached a point where I need

to move forward. One notable example of that came from Los Angeles County. The public defender there who I spoke to, Ricardo Garcia, has said that, you know, courts are just kicking the can down the road and they can't take it anymore. And so it's a situation that mirrors I

think a lot of lawyer's attitudes across the country. The problem is that the question is whether you can actually do something about that, because courts are issuing these blanket orders, delaying these trials essentially indefinitely, but piece by piece, so there'll be a month extension followed by another month extension, just because really, I think courts are buying time, just like every other elected official is when people just don't really know what to do, and so it's easier to

take it piece by piece when people just don't know what's going to happen the next day, and so we're not seeing a ton of challenges to this, and when we are seeing challenges, I don't think lawyers think they're necessarily going to be successful in this because courts are

going to defer to the emergency. I wonder if this means in some sense this gives the defense an advantage in the witnesses may not want to come in and testify, and victims may not want to come in and testify, and prosecutors may have a hard time just putting their case together. So that's definitely a concern that comes up

in when I spoke to some prosecutors. In the same way that defense lawyers are worrying about their clients, prosecutors are worrying about essentially their clients, which are the witnesses and the victims that they're trying to bring the court to make their case. And so everyone really has the same concerns these days and so and so you have to think about your health as well. That's just one of the many challenges that being faith here and trying

to put these trials together. Thanks Jordan's that's Jordan Reuben Bloomberg Law Editor. Just a month ago, President Trump said this about the litigation over subpoenas for his financial records. Were basically starting all over again, sending everything back down to the lower courts, and to start all over again. Today Trump could say this ame thing about the congressional subpoenas for the testimony of former White House Counsel Don McGann.

Despite a victory for Democrats at the d C. Circuit Court of Appeals, the fight over McGahan's testimony is going back to the lower court judge who ruled on in November of last year. Joining me is Harold Krant, a professor at the Chicago Kent College of Law. This goes way back to April of last year. So just remind us why they wanted to subpoena Don McGann. Don McGann served as White House counsel for President Trump, and he

was critical figure in the Russian investigation. By all accounts, he was there at President Trump's elbow during the firing of FBI Comey and at Trump's alleged efforts to get Mueller fired as a special investigator to look into the

Russia investigation. He cooperated with the special investigation, but then when the House decided to subpoena him, the president New Council decided to intervene and forbid him from complying with subpoena, arguing that as a close advisor to the president, he was immune from any kind of reach of the House in its effort to get investigation to corroborate the alleged obstruction of justice charges against President Trump. This was an on bank hearing of nine judges on the d C.

Circuit Court of Appeals. Tell Us about the seven to two ruling, The depicially is important in terms of the broad strokes that it paints as to build legitimacy of a corrational interest in obtaining information in the president's possession.

The argument had been that courts should never get involved in these kind of subpoena fights over information, because of course that would be a kind of a forced umpire and they would have to decide that rule for one branch or the other, and they'll be better to let the two branches fight it out, and sometimes the two branches to fight it out successfully over what type of

information to bulge. In the lower court case, the court had held that courts are not permitted under our constitution to sit in this kind of inter branch dispute between Congress and the presidency. That would not be appropriate under our system of separation of powers for the courts to

make that kind of rule. The armand Court has upheld not only the congressional interest in getting this information to investigate in a possible impeachment, but has held that the courts are indeed the proper place to enforce a subpoena because Congress has a tangible interest in getting this kind of information. But the case is not over, because it's going to go back and McGann can still claim that the information he had because of his work for President

Trump is privileged. There's a long time recognition of executive privilege, and he will probably make some other claims as well. So the principle is very important here that the almand Court maintained. But it's unlikely that we're going to see McGann's testimony anytime soon. Let's talk a little bit about

the tone of the majority opinion. The judge wrote that Trump had taken an unprecedented categorical direction and that the Trump administration's disregard for constitutional obligations likely explains the infrequency

of subpoena enforcement lawsuits such as the present one. Tell us what she was getting at there, Well, what the Court was suggesting is that the reason why the branches had been able to reach some kind of accommodation or reconciliation of fights over information we passed was because they believed in working together ultimately. Yes they each had their side, Yes they had their differences, but they all believed that there was a fundamental role for each in governing the country.

And what the Court is reacting to was that there has been a sort of manifest lack of respect for Congress that has been exhibited by our chiefs Ecutive, and that you expect the two branches to come to an agreement when one side here the President is so dismissive of and detigrates the authority of Congress that under those kinds of unique situations, it's even more appropriate for the

courts to step in and act as the arbiter. The majority opinion sided the Supreme Court opinion on the congressional

subpoenas for Trump's financial records sixteen times. How much reliance was there on that decision In fun Strokes, the opinion is sort of like a reflection or parallel to the Supreme Court's decision in the major's case having to do with Trump's taxes, because in both cases, what the Court held was that the claims of absolute immunity from suit by the executive branch, that those claims are too broad, and that that kind of executive hegemony is anathetical to

the structure of our constitution. It did say, however, in both cases, that there could be legitimate reasons for either contesting the effort to get taxes in the one case by Congress in the other case, the effort to intrude into executive privilege by asking God to demanding questions about

his relationship with President Trump on the other. But in broad structure, both courts reject the claim of broad immunity by President Trump's administration and say that's not how we understand the way the Constitution is meant to be structured, and rather their need for one branch to conform or accommodate to the legitimate claims of the other branch at times, and that both of these were such cases where accommodation

is required under the Constitution. Two Republican appointees were in descent here, and how did they distinguish the Supreme Court's opinions In dissent, They look to a different line of cases um involving the ability of Congress to go into court to sue, and there's been a string of opinions that has limited the ability of individual members of Congress to go into court to contestant injuries suffered by the

entire Congress. So they made parallel arguments and said, this is really simply the Democrats in the House, not the entire House, that is going into court for some kind of injury. They shouldn't be allowed to use the authority or the majesty of the U. S. Court system to get what it is an essence of political victory. And the majority, however, rejected that and said this is not the interest of a single or limited part of the legislature.

This is an entire legitimate House effort to get information pursued into its constitutional responsibilities under the impeachment clause. So this is not just like three members of the legislature who feel like their vote has been diluted. This is an institutional injury to the House of Representatives itself and

when an exercising constitutional responsibilities under the impeachment couse. I found it interesting that Trump's position was that Congress has other tools available, and one of those tools was shutting down the government. How did the court react to shut down the government to enforce these subpoenas well. I mean, what the Court has said is that you know there are, yes, there are political ways to fight over information in subpoenas um.

But at the same time there is there is this kind of brinkmanship is not required on the constitution, that there's a history of enforcement of subpoenas and the fact that the president administration has disdained for the operation of the House of Representative is not a reason for course to forbear from deciding this important case. Again, I don't

think we can seem against testimony anytime soon. But the principle that The fact that a close advisor is not totally immune from from complying with the congressional subpoena when the congressional subpoena is looking into the wrong during an executive branch is a very important principle that was reinforced by the court. So they sent this back to the lower court, and the lower court judge had written this very strong opinion where she said presidents are not kings.

What kinds of questions are left for the lower court to decide. There's a technical question about whether the way to force compliance with the subpoena is through an action, a judicial action, or whether first it's whether to a refer a refusal to comply with subpoena to prosecutors to lodge a contempt action. So this is a route. Do you go through a criminal contempt action or do you instead have a sort of declaratory judgment to require compliance

with the subpoena. I think the Mbard Court clearly indicated that their view on this. They didn't decide it, but their view on this is that this kind of judicial action is totally appropriate and you don't want to have to rely upon a criminal contempt motion for relatively obvious reasons, because since the executive branch is in charge of prosecution, you're not likely to get any kind of prosecutory of contempt or when it's the executive branch fighting with the

legislative branch. So that one is is even odd that I think the President is maintaining that position. The one that is I think quite legitimate, which is this claim

of executive privilege. Much of the information that Don McGann has he has by virtue of his role as an advisor to the president, and if the questions pertain to the advice he gave the president, those kind of conversations are subjected to not an absolute privilege, but to a qualified privilege that the lower court would have to figure out.

On the one hand, is the presidential privilege more important as opposed to the other, which is the need for information from the House to go about it's constitutionally assigned functions. And here, of course, because we're the end of the term and the impeachment has already been voted upon, you know, it's unlikely that the houses need will be paramount if such issues are claimed by privilege. Some won't be things

that McGann may have seen. Things that McGann may have heard from non presidential sources may be appropriate for divulging to the House. But there will be some materials in McGann's possession and memory that would definitely be subject to this presidential privilege. Might the Justice Department also appeal to the Supreme Court and is the court likely to take this case? I don't think the Court would be likely to take this case so soon on the heels of

the congressional subpoena for Trump's taxes. I could be wrong. Besides, I don't think there's anything really to this procedural posture is one that's at the worst for the administration, and it's more likely I think the administration will allow let it percolate back in the district court because it's going to go on a very slow probably will not be speedily resolved. So I don't think they have much to worry about in this instance. In this case, two judges

to Trump appointees recused themselves from hearing this case. So the ruling was seven to two, with the Democratic appointees in the majority and the Republican appointees in the minority. And those two Republican appointees were in the majority in the panel before that ruled for Trump. How do you

explain this other than that it's a political decision. Well, I think that to some sense, one is not surprised that if you have a geology is supposed to reflect the political philosophy of the president who appoints the judges, and so you would expect more often than not that the judge appointed by the president would be sympathetic to the expanse of Article to authority that the president believes in, and that was reflected obviously in the Onbod decision, but

in the task case in the Supreme Court. Obviously we were delighted to find out that there is more of a mix. That the opinion attracted both Republicans and Democrats, which shows that sometimes there is independent analysis and that once you are appointed, even if you share some parts of political philosophy of a president, you will form and mold your own views, and so you don't have copycat views.

And so Democratic appointed judges often disagree with Democrat other Democratic appointed judges, and as do Republican appointed judges as well. The subpoena will expire at the end of Congress's term. A new Congress is going to be sworn in. Is there any possibility that they would be able to enforce this subpoena before then? Or will the litigation just go on much longer than that. There is some chance that

then it could be enforced before that. There probably will be a hearing within a month in District Court to take the next steps. The McGann side will put in several motions to get rid of the subpoena as well as to limit its reach because of executive privilege. The court will then have to make that decision and there will be an appeal, so likely it will go up to the DC Circuit again prior to the election. But if they decide then to seek review in the Supreme Court,

that will be resolved probably well after the election. Here's about a five percent chance that this will that the subpoena will be resolved upon prior to the election. The judges also found that the lawmakers can go to court to fight the border wall, so explain how standing works in both cases. There's been a very long and difficult history of the Court struggling to find when members of the House or when the House itself as an institution, can go to court to try to protect its own

legal interests. In the Monument's case, for instance, the courts have held that members of the legislature, even all Democrats for most of the all Democrats, do not have standing to try to get the resolution of whether the president's actions have violated the monuments clause, even though the institutional interests because Congress has the constitutional right to consent to

gifts received by the president. In the border wall case, there the question is whether there was a to find tangible interests of Congress to go to court to say that the President is trying to bypass Congress in funding the border wall. I find that a harder case. All the case is are you know, somewhat similar? But I do believe that this case is the easiest one with

with McGann. Why because the fact that the Constitution directly devolves the responsibility to consider impeachments onto the House, and if the House can't get information, it can't perform its constitutionally assigned functions. The standing question with respect to the border wall, I think is closer. Yes, the President was doing the end around Congress. On the other hand, there are other people who could maintain the claim doesn't happen in members of Congress and other people have suit to

stop funding the border wall. In fact, they've been successful. So I think that these are all very difficult case specific statutes, but clearly the nature of the institutional injury is key. Again, the impeachment clause injury, I think is much stronger than the monuments. And I think the border wall might be somewhere in the middle because it was seemed to be a circumvention or a run around as opposed to Congress's control over funding. Thanks for being on

the show. How that's Harold Granted, professor at the Chicago Kent College of Law. And that's it for this edition of the Bloomberg Law Show. I'm June Grosso. Thanks so much for listening, and remember to tune to The Bloomberg Law Show every week night at ten pm Eastern right here on Bloomberg Radio.