Hunter Biden Is Guilty & Student T-Shirt Banned

This is Bloomberg Law with June Brusso from Bloomberg Radio.

Special counsel David Wise took a victory lap of sorts after the first conviction of the child of a sitting president.

While there has been much testimony about the defendant's abuse of drugs and alcohol, ultimately this case was not just about addiction, a disease that haunts families across the United States, including Hunter Biden's family. This case was about the illegal choices defendant made while in the throes of addiction.

After less than three hours of deliberations, a jury convicted Hunter Biden of three counts of violating federal gun laws for illegally checking a box on a form stating that he wasn't an active drug user at the time he bought a firearm. After the verdict, President Joe Biden said in a statement that he would accept the outcome and continue to respect the judicial process as Hunter considers an appeal. And defense attorney Abbey Lowell also said they would continue

The government had the documents and the testimony which got them over the hurdle for a guilty verdict. Putting aside the legal case, I think it's a sad human story. It's sad for the family, whether or not you like his father's politics or not. It just reflects how deeply people go when they're addicted, whether you're Republican, independent, liberal, Democratic, or otherwise. It really shows the throes of problems that occur when people have addictions, and that's on a human level.

Did the defense arguments about the form about Biden not knowingly violating the law? I mean, did they carry any weight or was their only hope jury nullification.

I don't think it carried much weight. Clearly, a three hour decision by the jury reflects that. I think the jury just discounted that the.

Prosecution seemed to really drag Hunter Biden through the mud, not only the testimony of his ex wife, ex lovers, but pictures of him half naked with a crack pipe, and the prosecutor in the closing argument said the evidence was personal, it was ugly, and it was overwhelming, but it was also absolutely necessary. Was it all absolutely necessary?

It was a lot. It seemed excessive at times, and it certainly shows the frailty of mister Biden, and you know the depths of his addictions at the time. Whether or not it had a significant impact on the jury unclear, but at times it seemed like it was a little heavy handed.

Everyone seemed to agree that the defense made a mistake calling Naomi Biden to the stand because on cross the prosecution presented her with texts showing some strange, unexplainable behavior by Hunter Biden. But what else could the defense have done? Do you see anything else that the defense could have done.

Look, they were in a difficult position. Their hands were tied to a great degree, and so their defense strategy is somewhat limited, and that might have been one of the only moves they could try. But clearly it didn't work.

Could Hunter Biden taking the stand have made a difference? So he may be asking himself that.

He might be asking himself that, but remember he's got another more significant and more serious case that's pending in California, and so to have him on the stand, expose him to cross examination, I think was just too dangerous.

Three jurors who spoke to CNN after they reached a guilty version said they believed they had no choice but to find Hunter Biden guilty, but said they questioned whether the criminal case ever should have been brought against Biden. One juror said the case seemed like a waste of taxpayer dollars.

It's an interesting perspective, and certainly commentators are going to, you know, latch onto that pretty quickly. But the case was brought, and it was tried, and the conviction was obtained, and so, you know, should it have been And you know, whether or not politics played a role in this, you know, we may not know so clearly.

One of the jurors who spoke to CNN said, the vote was six to six last night and it was eleven to one this morning. Does that show the jury process working? Does that show a juror not able to hold out?

That's a big swing. Certainly, that's a pretty significant swing. And I wonder what convinced the five or six that you know, went from the no column to the yes column. What canvinced them to change their mind? Was it some additional evidence that they were viewed for the second or third time, or was there some perspective that another juror gave which convinced them, And I'm sure at some point in the future those people will speak out and we'll probably learn a little bit more.

Can any of that be used in an appeal?

No, unless it was impropriety by the jury, you know, something you know untoward and improper by the jury, or if they use some outside evidence, then you would have questions that would arise as to the validity of the of the verdict.

So the special Counsel David Weiss took a sort of victory lap after the verdict. Was that appropriate when he has another case against Biden pending.

Look, I'm not going to comment on, you know, whether or not a special council should be, you know, taking victory laps in the midst of other more significant cases. I think that's the decision for him and for the Justice Department and others to comment on. But you know, my rule of thumb, you know, when I worked at the Department of Justice, was to be humble, appreciative, and to keep your head down and just work and proceed forward. On the next case.

He technically faces twenty five years on all three counts. What's a likely sentence would a what's a judge going to consider here?

Yeah, I don't think he's going to end up doing any jail time. I think he's a first time offender, he has now a job, he's a recovering addict or alcoholic. So there are reasons and justifications that the judge can use under federal statute which could have his sentence be whether it's probation, or whether it's house arrest or something in community service or something equivalent to that. I do not foresee him going to prison on these charges.

So the judge said something about sentencing in one hundred and twenty days. Should he be sentenced before the California trial or after the California trial or does it not matter?

I think you're right. I think that's a difficult question. Traditionally the judges like the sentence between three to four months after a jury verdict or a plea, so it will be interesting to see whether it actually happens before the California case. I don't know if the judge was holding off setting a sentencing date for that reason, to really look into the issue, but my gut tells me they'll schedule sentencing shortly.

Let's talk about some of the appellate issues. What appellate issues do you see?

Well, there's always evidentiary issues, the admission of evidence, motion emotion to exclude certain evidence or exclude certain testimony, whether or not documents were entered appropriately, whether the scope and breath of the testimony was appropriate. Things of that nature are the traditional hallmarks of an appeal.

After the verdict, some of the jurors question whether a case like this should even have been brought. I mean, you have a drug addicted person who fills out a form and lies to get a gun, but then doesn't commit any crimes with that gun, and in fact abandons it.

I would say it's highly unusual, and unfortunately, I think what we saw was political pressure and the optics of politics at play, and unfortunately Biden was impacted and how to go to trial as a result. I don't think normally, if this BAC pattern existed with anybody else but the name Biden, it probably would not have been brought. And if it was brought, it probably would have been pled out for terms that you know are reasonable.

And tell us about the California tax case, which everyone seems to think is much more important.

Yeah, it's a tax case where he is alleged not to have paid taxes on over a million dollars of income, and that case can hurt them. That case can really hurt them both financially but also from a potential jail time that has serious consequences.

What kind of jail time is associated with that?

The jail time is contingent upon the tax loss amount that the government proves a trial, so he could be looking at, you know, a couple of years in prison if the tax loss is multimillion dollars.

He does the Biden case answer the issue of the Justice Department being weaponized.

Well, it's certainly an interesting issue. I like to think that the Justice Department is independent and does the right thing all the time. Maybe that's just the former DOJ lawyer and me saying that, But here it does appear that they were influenced by the politics of the day, and by bringing the case they can try to show a trumpet that they were independent enough to bring a

Would do you understand why Merrick Garland appointed David Weiss as Special Counsel after the plea deal fell apart?

The concern was that because Merrick Garland sits as an appointment of the President, that the President could be seen as influencing me Eric Gardland's decision making process. As a result, instead of him making the decisions in the case whether to prosecute, to find a plea or anything related to the case, he essentially offloaded it to a Special Council and so that the responsibility and independence of the prosecution is maintained by having a special counsel handle it.

But do you think that there's pressure on a special Council not to take plea deals but rather to bring things to trial and try to get verdicts so they can say, look what I've done.

It's absolutely a great question, June, and I think every Special Council probably feels some pressure for a result, whether the result is a non prosecution like when Robert Hurr found some non prosecution last year, or whether or not it's in Lewinsky matter where the Special Council went off on other issues, but did find criminal and civil and congressional issues to pursue. I do think there's a certain mentality that you have to justify your appointment and find something.

So many special councils in such a short period of time. Thanks so much, Michael. That's former federal prosecutor Michael Weinstein of Coal Shots. Coming up next on the Bloomberg Laws Show, a case over a T shirt at a middle school goes up to a circuit Court of Appeals. I'm June Grosso and you're listening to Bloomberg.

This is the Bloomberg Green Report. The world has had a full year of record heat, and experts say we can expect more. It became official late last week that May was the twelfth consecutive month of record breaking temperatures, and experts say more heat waves are likely this summer. Europe's Copernicus Climate Change Service as overall global temperatures last month were one point fifty two degrees celsius above historical

This is Bloomberg Law, with June Brusso from Bloomberg Radio.

A federal appeals court has ruled that a Massachusetts public school can ban a student from wearing a T shirt reading there are only two genders. Free speech rights can collide with the duties of public schools, but the First Circuit ruled that the First Amendment does an override a public school's obligation to protect LGBTQ plus students from discrimination.

I believe there are only two sexes, male and female. And I believe what we call a person's sender, whether someone is a man or woman, boy or girl, has everything to do with whether they're sex is male or female. This view was backed up by science, And even though the administrators at my school would like me to think I'm a load in holding this view, I know I'm not.

In the unanimous decision, Chief Judge David Baron wrote, school officials must have some margin to make high stakes assessments in conditions of inevitable uncertainty. Joining me his first Amendment law expert, or Timothy Zick, a professor at William and Mary Law School. Tim just tell us about what happened here.

Yeah, so the twelve year old student was told that he could not wear a T shirts I've read as he said, there are only two genders. Pursued into a provision of a public middle school dress code, and when he was told he couldn't wear that shirt, he came back a little bit later with a T shirt that said the same thing, except only two was covered by a piece of cape on which was written the word censored. So there are actually two T shirts here. Student was told he couldn't wear either one.

The school's dress code required that quote clothing must not state, imply, or depict hate speech or imagery that targets groups based on race, ethnicity, gender, sexual orientation, gender identity, religious affiliation, or any other classification. Are those kinds of dress codes considered constitutional?

I mean, this court actually addressed whether the code itself constitutional, and it said it was. I mean, there's no sort of juridical category of hate speech that's uncovered or unprotected by the First Amendment. So if this was language that was applied and say a statute or a regulation with prospective speech staying a public park on a public street

Did the school just follow its dress code or were there other factors that were considered as well.

Essentially, the school applied its dress code the provision that you referred to, referring to hate speech or imagery that targets groups based on, among other things, gender identity, and the courts agreed with or deferred to the officials at the school who thought that the shirt was a commentary on gender identity, denigrating students who did not fit the gender norm or who were transgender, or what have you. So the school's perspective is, you know, we're enforcing our

And the student's lawyer said, this isn't about t shirts. It's about a public school telling a middle school or that he isn't allowed to express a view that differs from his own, and that the school actively promotes its views about gender through posters and pride events, and it encourages students to wear clothing with mess just on the same topic. Does that advance the argument in anyway?

Yeah? I mean so. The baseline rule here is that K through twelve students don't shed their constitutional rights to free speech at the schoolhouse gate. But those rights aren't the same as the rights of students or adults to speak and say a public park or on a public street. School officials are allowed, you know, to regulate speech if it substantially disrupts the school environment or if it invades the rights of others on campus. Those are the two

During the oral arguments, one of the judges contrasted the shirt with a brochure handed out by students, saying, unlike those pieces of paper, a student couldn't throw away the shirt, and a T shirt that is worn all day is worn all day. You have to look at it, you have to read it. Did that come into the opinion that element?

It definitely did. The Court took into account the form of speech right, the manner or the mode in which the speech is communicated. And as you say, as the court recognized the T shirt visible to any student throughout the day who happened to be sitting near or by this person or walked at them in the hallway. So

Was a unanimous opinion. Explain more about how the judges came to the conclusion they did.

Sure, So it's important, I think, to note that the first circuit here doesn't adopt some broad offensive to others limit on school speech, under which any statement that hurts the feelings of some students could be suppressed or punished. This isn't a decision that directly addresses bullying or harassment in the school context, both of which I think are widely viewed as subject to discipline, and rightly so. It doesn't rely on the principle of invading the rights of others.

Chief Judge David Baron, who wrote the opinion, said, the question here is not whether the T shirt should have been barred. The question is who should decide whether to bar them, educators or federal judges.

Yeah. I think what the court is saying is we don't feel comfortable sort of stepping into the shoes of school administrators, either in terms of interpreting what the message is on the T sh sure or maybe more importantly,

Give us a little bit of the background of how the Supreme Court has treated these cases of free speech in schools.

Well, the Court started in a case called Tinker in nineteen fifty nine with a very broad reputation of student free speech rights right only if the speech disrupts the educational environment or invade the rights of others can officials

Coming up next on the Bloomberg Law Show, I'll continue this conversation with Professor Timothy Zick of William and Mary Law School. The attorneys for the students say they'll likely pursue a further appeal, but that would acquire either the entire First Circuit Court of Appeals or the Supreme Court agreeing to hear their case. How likely is that I'm June Gross and you're listening to Bloomberg with.

The Bloomberg Small Business Report. I'm Steve Potosk, brought to you by Dell dot Com. Data counting small businesses from underserved economic and social groups entering the federal marketplace for the first time would be required under a new US

This is Bloomberg Law with June Brusso from Bloomberg Radio.

A Massachusetts public school can ban a student from wearing a shirt reading there are only two genders. That's according to the First Circuit Court of Appeals, which said the First Amendment doesn't override a public school's obligation to protect

Yeah. So, in Tinker versus Des Moines Independent Community School District in nineteen sixty nine, the Court said that students do not shed their constitutional rights to freedom of speech at the schoolhouse gate, but it also made clear those rights are not the same as the rights of students are adults to speak in other places like public parks on public streets, and even though the court held the student's speech there, which was the wearing of black armband

Is this newly conservative court with the six member super conservative majority, likely to follow the Tinker case and the cases that follow it, or could they decide to go off in a different direction.

It's hard to say, obviously, right, but this is a court, the Roberts Court, that views itself as very protective of freedom of speech or very supportive of freedom of speech. There is that recent case I mentioned where they sided with the students, indicating that, you know, school officials should be aware that there are limits to their authority, right, but those limits applied outside the school context. You've been on school premises, when you're conducting classes, or you're otherwise

Representing the student here is the Alliance Defending Freedom, which is a conservative Christian legal group. How would you describe their mission.

I'd leave it to them to describe their own mission. They are involved in a lot of you know, obviously religious liberty cases, but also the intersection between freedom of speech and religious liberty, and so you know, I'm not surprised to see them involved in a case like this.

The student's lawyers said they're going to pursue a further appeal and they could either ask the full First Circuit to hear the case on bank or they could ask the Supreme Court to hear it. I mean, do you think that the full First Circuit will take it?

I don't know. You know, it's an opinion. That's the seventy pages long First Circuits opinion. It canvasses very carefully, nearly all, if not all, of the lower court decisions on speech on T shirts or related to this particular issue right speech that sort of denigrates based on a characteristic or identity. So it's careful in that sense. It does not do what the District Court had done, which was to base its decision on that part of the

This is one of a number of cases challenging school policies aimed at protecting LGBTQ students. Would you say there are a lot of cases or just selective cases.

I don't know that. I'd say there are a lot of cases like this, but the First Circuit canvas is some of the cases that have come up, and relatively recent years. There was a case involving a student who wore a T shirt that said, quote be happy, not gay, and the court in that case said there just wasn't any evidence of substantial disruption based on the statement.

Right.

It took into account how derogatory is a statement, but ultimately it said there's no material disruption. There have been others that There have been other cases in the Ninth Circuit, for example, with respect to speech that was alleged to be derogatory with respect to occays in lesbians. So I can't stay they're rare, but I don't know how frequent they are. There are very frequent to dates about T shirts.

Maybe the dress code should just say no T shirts and that would solve somebody these problems.

Right, Requiring student uniform is something that would do away with this part of students speech litigation for.

Sure, from cheerleaders to T shirts. We'll see if this case is one the Supreme Court takes. Thanks so much, Tim. That's Professor Timothy Zick of William and Mary Law School. In other legal news today, House Republicans want the tapes. They're moving forward with their push to hold Attorney General Merrick Garland in contempt of Congress for not turning over the tapes of President Biden's interview with the special counsel

Loverstite Committee February twenty seventh subpoena required the Department of Justice to produce audio recordings of President Biden's interview with Special Counsel Robert are regarding the President's mishandling and improper disclosure of classified materials. The Department failed to produce them. The Oversught Committee held a markup to consider a report holding Attorney General Merrick Garland in contempt of Congress, and favorably passed that report today.

During a markup of the contempt resolution against the Attorney General in the House Rules Committee, Comer expressed concerns that those transcripts may be inaccurate.

It is insufficient to simply take the Justice Department at its word that the transcripts have not been altered.

Democratic Congressman Jamie Raskin said Republican's previous attempts to go after Merrick Garland have gone nowhere.

They want to listen to the book on tape. In a last ditch attempt to blame a cabinet member for the spectacular failure of their Laughing Stock impeachment drive.

And that's it for this edition of the Bloomberg Law Podcast. Remember you've can always get the latest legal news by subscribing and listening to the show on Apple Podcasts, Spotify, and at Bloomberg dot com, slash podcast, slash Law. I'm June Grosso and this is Bloomberg