James Indicted, Conversion Therapy & Right to Counsel

This is Bloomberg Law with June Grosseo from Bloomberg Radio.

Colorado Solicitor General Shannon Stevenson defended the state's ban on conversion therapy for minors at the Supreme Court. She argued that the Constitution allows states to protect patients from harmful, discredited treatments even if a regulation incidentally affects speech.

A healthcare provider cannot be free to violate the standard of care just because they are using words, and a state cannot be required to let its vulnerable young people waste their time and money on an ineffective, harmful treatment just because that treatment is delivered through words.

An evangelical Christian therapist is challenging the law, saying it violates her free speech rights, and the court's conservative justices appeared to agree with her, questioning the constitutionality of the law, Chief Justice John Roberts and Justice Samuel Alito.

In other words, just because they're engaged in conduct doesn't mean that their words aren't protected looks like blatant viewpoint discrimination.

Liberal Justices Sonya Soto Mayor and Katanji Brown Jackson were the only justices who addressed the harms of conversion therapy that every major medical association warns about.

There are studies that say that this advice does harm the people emotionally and physically.

And Justice Jackson questioned why the Colorado law should be struck down when in June the court upheld a different measure from Tennessee that bans transition related treatments for transgender kids.

The regulations work in basically the same way, and the question of scrutiny applies in both contexts, So it just seems odd to me that we might have a different result here.

My guest is First Amendment expert Caroline Mala Corbin, a professor at the University of Miami Law School. Caroline, will you explain conversion therapy and Colorado's law banning it?

As about half the states in the country have done. Colorado banned something that has been called gay conversion therapy, and it's the idea of trying to convince someone who is gay that they're not actually gay, or trying to convince someone who is trans that they're not actually trans. And this approach to gay and trans people has been proven to be very deleatorious for their mental well being,

What's the fundamental issue in the case.

So you have this law. It says, if you're licensed by the state, the state does not allow you to do things that are contrary to the standard of care, and so you cannot provide conversion therapy. And we have this white Christian woman who argues that the ban forbids her from providing the type of therapy that she wants to practice. She gets help from Alliance to Friending Freedom. And so the question for the court is does this ban on this medical therapy violate the licensed practitioners free

It seems like there is almost universal agreement among those who listen to the oral arguments that the Christian counselor is going to win here.

I mean, clearly, whenever you have a white conservative Christian arguing before the Supreme Court, they're going to win, especially if the only thing that's stake, and I say only from the Court's perspective is LGBTQ rights. They just don't care, right, So, I think it was a foregone conclusion, apart from any of the legal principles, that the white Christian woman was

It seemed like most of the discussion was about what standard should be applied here.

Well, that's because if it is considered speech, then the standard is going to be strict scrutiny. And if it is not speech, then it's only going to be rational basis scrutiny. So what level of scrutiny a court must give to this law, how hard it looks at it, questions it. The level of evidence the government needs to provide will depend on whether it is speech or conduct, because again, if it is speech, then it implicates the free speech clause.

Is this a novel issue coming to the court? Have they decided any similar cases?

The Supreme Court is not deciding this against a blank slate. They have already considered the question of medical treatment and speech conduct. But in the abortion context. So I want to highlight that many states who are hostile to abortion, one of the things that they require their abortion providers to do is to give women certain information about abortion. So for example, you have to let women know that adoption is an option, or that fathers have to pay

The Supreme Court has been steadily rolling back protections for gay and transgender people in recent terms. The last time I can think of that LGBTQ writs one at the Supreme Court was the boss Stock case in twenty twenty. Is that the last time.

I think so, and I think they have really undermined their their own credibility by so aggressively promoting a particular ideology, and to do so at the expense of a marginalized community is not to their honor. And let's be clear, they get to pick and choose their cases. There was

And the decision here will implicate similar bands on conversion therapy in twenty six other states. Thanks so much, Caroline. That's Professor Caroline Malacorbin of the University of Miami Law School.

This is nothing more than a continuation of the president's desperate weaponization of our justice system.

New York Attorney General Letitia James was inded in a mortgage fraud case on Thursday, making her the second of President Trump's perceived political enemies to be criminally charged. In the Eastern District of Virginia. In two weeks, James infuriated Trump by suing him and winning in a case alleging that he built his business empire on lies about his wealth, and the President had called for legal action against James,

And the president's own public statements make clear that his only goal is political retribution at any cost.

Joining me is Bloomberg Legal reporter Chris Strom. Chris, We've been hearing about this investigation into James for months. What are the two felonies they finally charged her with.

So government alleging that James lied on one of her mortgage applications in which she said that one of her homes in Norfolk, Virginia would be used as a secondary residence, but she was really running it out, that's the allegation. And so they brought forward two charges, one for bank fraud and another for lying to a bank. So James says that these charges are baseless and she's going to contest them. The wild card here is that this was not the property that was under scrutiny for so long.

Is a criminal case based on charges like these pretty rare.

Mortgage fraud is a legitimate federal charge. It's usually charged as part of a larger criminal enterprise. What makes the situation with James unique is that the amount of money that is a leg edged to have been involved in the fraud is so minor, and current and former prosecutors say that the amount of money that's that issue here is so small that it wouldn't ever be brought as

Let's talk about the backstory here, because the only signature on the indictment is that of the newly installed interim US Attorney for the Eastern District of Virginia. Lindsay Halligan, a former Trump aid who was put into the role a few weeks ago after Trump forced out her predecessor, and in an unusual move, she personally presented the cases against Ja James and call me to the grand jury. That's something that US attorneys don't usually do.

Yeah.

The other thing that's really unique about this case is that there was a US attorney who said that this case should never have been brought forward, and he was facing pressure to indict Letitia James as well as James Comy,

And there are a lot of other similarities between the case against James and the case against Comy, and it appears that there'll be some similar defense motions to dismiss in both cases. Comy pleaded not guilty on Wednesday to charges that he lied to lawmakers and obstructed a congressional proceeding. You were in the courtroom for that arraignment, and Comy's defense attorney outlined some of the grounds they would use to try to get the charges dismissed.

His attorney is Patrick Fitzgerald, who is a very well known, very respected lawyer, former US Attorney for Chicago, and he made three main points that they are going to challenge. That the case against Komi represents a vindictive prosecution and a selective prosecution, and that the appointment of the interim US attorney who brought the charge was unlawful. And so they are going to move through those phases of challenges and if they all fail, then they will go to a speedy trial.

We've talked about how unusual Halligan's appointment was, but what does Fitzgerald say it was unlawful?

The objection is that she was not a Justice Department official before she was appointed. There are certain rules that have to be followed when you are appointing a temporary position within the Justice Department, and US attorneys need to be Senate confirmed or they need to be given the appointment by federal judges. It's allowed to have a temporary appointment, but the temporary appointment must be somebody who comes from within the Justice Department, which Lindsay Halligan does not.

So that's interesting because if the judge threw out the indictment because she was not a legal appointee, I mean the statute of limitations has run, they wouldn't be able to bring the charges against him again.

Correct, The case would be completely dropped and there'd be no ability to bring it back.

You know.

The only caveat is these are hard motions to win. Generally, judges are hesitant to throw out cases that grand jury's have returned. So the defense does face some obstacles to being able to do it, but the rules of how US attorneys are appointed in what they can actually do raise legitimate questions for the defense to challenge the appointment of Halligan.

And Letitia James could also use that argument, although since there's no statute of Limitationan's problem in her case, prosecutors could just refile the charges against her, and it does seem like they would have similar grounds to dismiss on vindictive or selective prosecution.

Yes, James has already said she's going to allege that this is a selective and vindictive prosecution. She's going to rely on many statements that Trump has made calling for her to be indicted, including social media posts that Trump made last month where he basically directed Attorney General Pam Bondi to indict James, Tomy and Adam Schiff. And so that will be one of the primary pieces of evidence that her defense will use to say this was a vindictive and selective prosecution.

James is going to be arraigned on October twenty fourth, so we might learn more about her case at that time, and you did learn at Comey's arraignment that they haven't been given any additional details about the charges.

Secifically, the defense wants to know who Komy authorized to provide information, and what information that person provided and who it related to. In the indictment, it says that Komy authorized person three to provide information about person one. It's pretty clear from everything we know that person one is actually Hillary Clinton. But what's not clear is who is

The judge said, this doesn't appear to be an overly complicated case. I mean, they can certainly give Komy the name of the people in the indictment. I mean that seems bare minimum.

Yeah, it was surprising that the government had not already provided Komi and his lawyers with just the basic information of who they allege Ko Me authorized to leak information. And it really speaks to how unusual this case, you know, has been from the start, and how there might be a problem with the ability of the new US attorney to manage this prosecution.

And speaking to that, the two prosecutors who have signed on to handle the case are both based in North Carolina, as opposed to the Eastern District of Virginia where the case is taking place.

Yep, it's our understanding that most of the career officials in the US Attorney's Office for the Eastern District of Virginia looked at the case and determined that there wasn't sufficient evidence to bring a case or go to the grand jury and get an indictment, and so none of them are willing to sign on to this case. And the new US attorney, who has never prosecuted the case before, then had to bring in, you know, assistant US attorneys from another office in order to appear in court.

I don't know if I've ever heard of anything like that happening before.

I haven't.

And another surprise for the defense, there's classified information involved in the case.

So the new wrinkle was that the prosecution said that there's a large amount of discovery material that they have

The judge said the trial date for January fifth, We'll see if he can keep things moving. Thanks Chris. That's Bloomberg Legal reporter Chris Strom. It's the most difficult decision a criminal defendant has to make a trial, whether or not to take the stand. And when a defendant decides to take the risk of testifying, what role does his

And I notice every time I do that, you know, Juring number eight gets a big frown and shakes his head. He doesn't look to me like he likes the idea of talking about Fred at all. So I think that's a bad idea. Now, talking about Fred was your idea? Do you still think it's a good idea. Can the lawyer respond to that question?

No, they you would have to tell them, I'm omner a core order not to out to answer.

So at that point he tells the defendant who's facing the capital sentence, I'm not going to tell you.

And Justice Elaina Kagan wanted to know about a lawyer giving his client some tips on his performance on the stand.

Do you think that council can say, listen, I've been noticing that you've been mumbling, and you're also not making eye contact with the questioner, and it would just be a good idea if you'd stopped mumbling and made eye contact. Can the lawyer do that in an overnight recess?

The appeals courts are split on whether so called non conferral orders during overnight trial recesses are constitutional. Joining me is former Manhattan prosecutor and criminal defense attorney Paul Callan of counsel at Edelman and Edelman. Paul tell us about the facts here.

The defendant, David Villarreal, was a meth addict allegedly who stabs his boyfriend to death, and he goes to trial, and something happened in that trial, and it's something that's very common in the trial of civil and criminal cases, and that is he was on the witness stand testifying,

So there was a lot of talk during the oral arguments about coaching your client. Is there a clear line between what's permissible and what's impermissible when coaching a client or preparing a client to testify.

Well, there's a line across and we call it subornation of perjury if a lawyer goes too far in giving advice to his client about how he should shape his testimony. And so lawyers always have to deal with this situation that they can't give advice that would constitute subornation of perjury. Lawyers do, and it's their job to give a client advice though, about how to testify on a witness stand, how to conduct himself on the witness stand, how to reactive as an objection made in court, all kinds of

How am I doing?

Am I doing okay on the witness stand, and the lawyer wants to encourage them and say, yes, yes, you're doing great, you know, or no, that was a stupid answer you gave, you know, try to listen to the questions that are being asked. So there are a variety of ways that lawyers approach this thing, so the courts

Some of the justices seem to be leaning toward a type of limited instruction where the lawyer is prohibited from directly discussing the testimony with the client during an overnight break, but is allowed to discuss broader trial strategies and issues that relate to testimony, and Villa Reale's attorney argued that that rule is unworkable in the real world, and just as Sonya Sotmayor gave an example of a lawyer suggesting that a client take a plea in the middle of

I find it impossible for a lawyer to say I think you should consider a plea bargain now, and that the defendant is not going to say, but why, and the why has to be my considered judgment that gets me from here to the corner and back with nobody paying me. Okay, you need to say something. The model rule says a lawyer shall explain a matter to the extent reasonably necessary to make an informed decision.

I mean it's very hard to draw a line in these circumstances.

Yes, Villaryal's lawyer made a very compelling argument in that regard because so much of the client's testimony. I mean, if you put a defendant on the witness stand in a criminal case, his testimony is now the key evidence

Justice Elena Kagan asked this of Texas's lawyer, do you think that counsel can say, listen, I've been noticing that you've been mumbling and you're also not making eye contact with the questioner, and it would just be a good idea if you'd stop mumbling and made eye contact. Can the lawyer do that in an overnight recess? Texas's attorney said no, I would consider that to be coaching their testimony as far as how you present yourself to the jury.

Well, whether it's coaching or not, I don't know. It probably is coaching. But that kind of coaching is exactly what you get hired to do as a lawyer, to school your client in how he can present his truthful testimony in the best way possible to the jury. And I think most lawyers view this situation where a client is on the witness stand, they will not often tamper with the content of the testimony in their discussions with the client. But they may say, listen, stop looking down.

Of course, you can never tell for sure from oral arguments how the justices will rule, but it seemed to me that the defendant didn't have five votes, that the majority of the justices were skeptical that not being able to talk to his counsel about his testimony during the overnight break violated his constitutional rights.

Well, i'll tell you and my suspicion is maybe they just want to stay away from the whole thing, because I suspect that the truth of the matter is there's nobody in that room at night when the lawyer is discussing the testimony with the client, and this rule is

Is there an ethical rule that you shouldn't talk to your client during a break in testimony.

There are no ethical rules about it, other than of course a lawyer cannot suborn perjury. So if you're giving the client advice, you know he's asserting, say, self defense in a case, and he tells you a story in which he's not under threat from the person he killed at all, and you say to him, well, you know it would help if you thought he was trying to strangle you when you pulled out the knife and started stabbing him, Well, that would be unethical, your subborning perjury.

And only Justice Katanji Brown Jackson was a criminal defense lawyer who might have faced some of these problems with a client testifying. She was an assistant public defender in d C. Justice Sonya so Tomayor is the only other trial lawyer on the court, and she was a Manhattan District attorney like you. Paul, thanks so much for joining me today. That's Paul Callen, former Manhattan prosecutor and criminal defense attorney. And that's it for this edition of The