Why Britney Spears May Be 'Freed?'

the founder of Nelson Hardeman. Harry tell us why she was put under a conservatorship in the first place. The routes of the conservatives ship started back in two thousand and eight. There were two circumstances in which, uh, you know, Brittany was hospitalized. In one case, she had locked herself into a room with her son, Um and she was

refusing to release him. She was in the middle of a dispute, a custody dispute over her children with her former husband, Kevin Federline, and there were weren't worrying signs about her mental health. There were a number of reports that she was suffering from bipolar and there were other kind of signs in her financial life that she was

making very erratic decisions on buying and selling properties. So at the time thirteen years ago, there was good reason for concern and that was the basis upon which Britney's father, Jamie you know, petitioned the court to appoint him as a conservator on her behalf. Well, what kind of um determination does a court have to make though to put someone under conservatorship, which can be so extensive, What kind of a finding did the judge have to make? There

are really are two kinds of conservatorship there. It's really the basic concept is that a conservator is a guardian, and so there's a conservatorship of the person, and that generally is when you demonstrate to a court that someone is not able to properly provide for their own personal needs. That means that for their own health and medical well being, for food, for clothing, for shelter. The other kind of conservatorship as a conservatorship of the estate, and that is

for somebody who is not who is not able. It requires a showing that a person is not able to manage their own financial resources. Um. You'll often see that in the case of people who have compulsive spending issues or cannot resist fraud or undue influence from others and

maybe vulnerable to abuse. So in this case, Jamie Spears thought both basically saying that Brittany was unable to kind of take care of her own medical needs and particularly her mental health needs, and also that she wasn't able to safely manage her own financial resources. And he was able to persuade a court back then in two thousand eight too, to appoint him as a conservator. Some of the things he did would strike most people as out rate. Just she said that he compelled her to take lithium

against her will. He insisted does she keep an i U D for birth control? Required to undertake performances when she didn't want to. Are those kinds of decisions normal in a conservatorship? I would say that the level of control, both on her medical decision making and the business business we were disturbing and very atypical. It is not an uncommon issue for UH for people to be required to take medication you know when that medication is life saving.

But in this case, the suggestion that she UH that you know that that that that that has come up that Brittany was was forced to take lithium against her will so that she could tour UH and perform, you know, in concerts around the world is disturbing and atypical that that sounds like a medication not for her essential health needs, but really for her father's business interest in keeping her working.

And the allegations regarding the hi u D. Likewise, there are there are situations where people who have severe cognitive disabilities. For example, UM, there are you know, parent a parent who was appointed as a conservator may may have concerns that this person, you know, that that's a mistake for this person to become a parent. But in this case here too, Brittany clearly was a highly functional person, and the UH of the ability to limit her reproductive choices

and prevent her from having a child was disturbing. And the most disturbing I think of all was the invasive allegations about control, you know, a total loss of privacy. Every her her cell phone mirrored, so that every single text she sent to any person was known to UH, the security firm in to her father, that her bedroom

was implanted with recording devices. Those are unheard of and really shocking, abusive and suggestive that this conservatorship went to places that are really unimaginable and should never have happened in an appropriately functioning system. So is that something that the judge should have caught I think the answer is yes. But I think we also have to lay part with

the lay. There's there's plenty of blame to go around here. Um. I think that the Judge Penny, there needs to be questions about why there wasn't more scrutiny and why this was allowed to persist for thirteen years. There should be questions as to Britney's counsel, who was not of her

own choosing at the time. Right now, Britney now has effective counsel who was only appointed in the last couple of months, But she for for years was represented by a court appointed lawyer who appears to have done like little to nothing to question anything that was going on. So she was sort of passive and it's a real

question to me what her lawyer was doing. And of course the last place we have to look is at her father and his counsel and how he was permitted to just have kind of untrammeled control, you know, even though a lawyer is supposed to be an advocate for their client. How there was no sort of oversight even by his lawyer, to question the ethical ends of this conservatorship in the place where it had turned fraudulent and abusive is to me also a fair question for us

to ask. If someone who is as famous as Brittany Spears, who's performing around the world, who has tons of fans watching her, if that could happen to her for thirteen years, what happens to an average person who gets put into a conservator ship? How did they get out of it? It's a fair question. I think our system is much better at at starting conservatorships than an ending them. And like a lot of things in our society, they have

kind of a self perpetuating quality. Um. You know, I I've seen plenty of There are plenty of places where conservatorships are necessary, you know, where you have frankly sad uh situations in family life, where you have a child, for example, who's not who just physically has cognitive impairments that don't allow them to take care of themselves. Where you have a sibling, for example, who is dealing with

mental health challenges and not able to protect themselves. We're living through a time when the number one form of abuse that we're seeing spread is elder abuse, elder abuse in the form of financial abuse, and you have children

of aging parents who need structures to protect their family members. Right, So there is a legitimate place for this, But what this case highlights is that there is also a very abusive side to these where people can be preyed upon by the very people who are supposed to be protecting them.

And I think that we are being forced to confront that there is a substantial amount of abuse by the conservators by the guardians themselves, and I think that's something that is going to need attention and and is going to lead to much more scrutiny and much more pressure on judges in the future to h to question and make sure that that that people aren't using their guardianship powers under conservatorship to uh to to engage in abuse themselves.

In an abrupt turn around from his position, her father earlier this year said that he wanted the conservatorship to end. So he wants it to end. She wants it to end. How likely is it that the judge will end it? So I think there's a good chance that the judge is either going to terminate the conservatorship at the next hearing, or at least at a minimum, provide a roadmap of the steps that the judge is going to require and

the showing that's going to be needed to terminated. So it was it's gonna be one or the other by the way we should It's important to note that her father's reversal is only really only happened in the last several months when it became clear that everybody associated with him, hit the financial managers, the the attorneys, everybody working for him were sort of like rats office thinking ship, and that he is really facing significant financial risk for his

abusive behavior and posential that he's going to need to repay millions of dollars. So his his last his reversal should not be seen as as a supportive decision, in my opinion, It should be seen as really a kind of desperate attempt to uh to get out of harm's way himself. But but I think the fundamental challenge for for Judge Penny is going to figure out It's going to be to figure out how to how to set

things right. And I think it makes sense and it's appropriate for her to terminate the conservatorship on the petition that was filed by Britney's lawyer, Matthew Rosenart hopefully hopefully this this coming week. Spears said she'd done research that showed her Conservative ship could be ended without further evaluation

of her. Is that the case or what it would have to be proven under California law so traditionally so, so judge is going to have to find that she is she's capable of managing her that she you know, she's capable of relying and taking the advice of the advisors around her to uh, you know, to appropriately manage her financial affairs. And also that she is likewise able to you know, uh rely upon and she's listening to

uh doctors and getting appropriate medical care. Um uh And so I think you know my typically you know, on the on the issue of her mental state, judges have wanted psychological psychiatric evaluations hum of the Conservatives conservative uh, the person in Brittany's position to to have some record to go on, um, you know. And that's really the big question is is Judge Penny going to say that

that's still necessary. Brittany has made it very clear that she doesn't want to have to undergo that evaluation, and that her performance over the last uh several years it should be indicative that she's like a very high functioning person who is obviously succeeding in uh, you know, in in in building an incredible career and uh and it's clear that she's got good and she's getting good advice and she's following it. So it's really a close call.

To me, there's no reformal requirement that a psychiatric or psychological evaluation done, but and it would be a conservative step, But I do I suspect that the judge is going to be feeling an awful lot of pressure to put this thing um in the rear view mirror, and so that she's not going to require That's just that's my my prediction. But we'll we'll have to find out this week.

So Brittany's lawyer vows to investigate her father, Will his financial decisions be investigated when the conservatorship is ended and control is given back to her over her finances. I think we I think it's almost the certainty that we're going to see a substantial investigation, particularly given the given the allegations of uh, the of the bugging, you know that, and all the security and personal privacy invasions that happened at substantial expense. I think that is that's one factor

that's likely to lead to this investigation. The other is that we we heard from one of the co conservators of the estate, who was the professionally appointed person that Brittany spot they're spent sent at least a million, and I believe the allegation was several million dollars on pr and on lawyers try to fight his daughter's own efforts to uh to sort of write the ship and to

terminate the conservative ship. So um. The fact that he spent so many millions of dollars that don't appear to have been for her benefit and appear to have been to preserve his power is almost certainly, in my view, likely to lead to an investigation. And I fully expect that at some point we're going to see an order from the court for him to return moneys that were Brittany's that he spent not on her behalf but ultimately for his own gain, uh, and that he is going

to you know, be be forced to repay. So we'll see what happens tomorrow. Thanks Harry. That's Harry Nelson of Nelson Hardeman in a high stakes gamble. Eighteen year old Kyle Rittenhouse took the stand at his murder trial yesterday and testified that he was under attack when he killed two men and wounded a ord during a chaotic night of protests in Kenosha, Wisconsin. During cross examination, prosecutor Thomas Binger question why Rittenhouse brought his A R style semi

automatic rifle to Kenosha. I need the gun because if I had to protect myself because somebody attacked me. Why would you think anybody would do that? I don't know, but you clearly planned on it. You were prepared for it. You thought it was gonna happen. No, I didn't. That's the whole reason you brought the gun, isn't it. I

brought the gun to protect myself. My guest is John Gross, a professor at the University of Wisconsin Law School and director of the Public Defender Project, explain why Rittenhouses lawyers asked the judge for a mistrial. Well, the request for a mistrial was based on the fact that the prosecutor made some commentary or asked some questions about the fact that Kyle Rittenhouse did not talk to the police officers

who took him into custody and first interviewed him. And the problem with that is that there is a longstanding constitutional rule against prosecutors commenting on the fact that a defendant chose to remain silent when questioned by law enforcement, because that is a constitutional right that we all have. Mr Rittenhouse doesn't have to talk to law enforcement. He doesn't have to take the stand at his own trial,

even though he did. And so prosecutors who suggest or question defendant about why they didn't talk to police, why they didn't offer some type of exculpatory testimony, why in this case Mr Rittenhouse didn't say I fired in self defense, that would be improper for them to do. They're asking, essentially the jury to infer that their failure to talk to the police suggested that they were guilty. That was

the basis of the defense motion yesterday. Um On a more basic level, of mistrial occurs when something about the perce meetings because of some highly prejudicial and improper evidence that was introduced, that the proceedings themselves become sort of fundamentally unfair and it requires a new trial. Now in this case, they were asking for a mistrial with prejudice so that written House couldn't be tried again. That's pretty

unusual for a judge to grant, isn't it. Yes, mistrials in general, aside from trials where there is a hung jury, which also results in a mistrial, but the granting of a mistrial during the trial is very rare, and the granting of one with prejudices even rarer. Still. You know, throughout the course of a trial, sometimes witnesses make statements that are not admissible, Questions are asked that are improper,

but judges simply give an instruction to the jury. They uphold an objection and they tell the jury that they should disregard the question. Or a witness says something that's irrelevant and the judge says, don't pay any attention to that. And so usually judges have these curative instructions that they give throughout the trial, and that's sufficient and the judge doesn't need to say, what we have to startle over again, this is a mistrial. The root of the argument that

the defense was making the mistrial with prejudice. That can be granted when a judge believes that the prosecutor intentionally caused the mistrial. So the prosecutor knew the evidence was improper, knew that the questions they were asking were improper, but did it anyway and did it intentionally to create a situation where the trial became fundamentally unfair. And if they do that on purpose, then there is the possibility that the judge can say double jeopardy does apply here and

you can't retry to defend it. In this case, the prosecutor told the judge he'd been acting in good faith. The judge said, I don't believe that. There is seems to be a very antagonist relationship between the judge and the prosecutor. He even yelled at him. I'm just wondering how that affects the jury when they see the judge

and the prosecutor not behaving properly. Well. Part of the initial jury instructions that jurors get is that they they shouldn't draw any inferences from the fact that a judge may uphold an objection or chastise one of the attorneys in the course of the case. That basically the judge gives them an instruction to say that the jury shouldn't infer any from this. It's it's not personal. Lawyers have an obligation to make objections, They have obligations to make arguments.

The judge has an obligation to to rule on those and to keep order in the courtroom, and that the advocates are going to make passionate arguments for their cause, and and that that's okay. It does become problematic if if a jury starts to perceive that the judge is hostile to one party's point of view or one party's case, or has a dislike for one of the litigants and is demonstrating that through the language they use or the way that they're referring to them or treating them throughout

the trial. I don't see anything that rises to that level in this case. You know, the prosecution here has kind of a challenging case to make out. They have to disprove beyond a reasonable doubt that Mr Rittenhouse acted in self defense. So it's a challenging case for them, and they are pushing hard. They're they're pushing the limits.

But I think one of the things that sparked the judges anger at the prosecutor yesterday was this rule about not commenting on a defendant's silence is a long standing rule and it implicates constitutional rights to the defendant. And this particular prosecutor is very experienced. So this was not an accident in the judge's mind. This was not sort of a rookie mistake. This was something that the prosecutor knew he shouldn't be doing, but he did it anyway.

And that's why the judge says to him that the judge doesn't feel like he was acting in good faith. Now, is that one incident even if the judge thinks it wasn't bad faith enough to prompt an entire mistrial, Probably not. It doesn't rise to that level. And the judge addressed it as it came up, and then he addressed it outside of the presence of the jury. So let's talk about Rittenhouse testifying. Did he help or hurt himself with

his testimony? I think he helped himself. Um. I think any time the defendant can get on the stand, especially in a case like this where emotions are running high, um, and they have been sort of portrayed in a certain light um in the media by the prosecution. In this case, you know, the prosecution was to paint him as a vigilante. Um. And when he gets on the stand, I think you see him as a person. At any time the defendant

takes the stand, you get the opportunity to hear from them. Uh, see them as as a as a fellow human being and not some caricature that's being made out by the other side. Um. He showed emotion on the stand. Um. You know, obviously he continued to say that he thought he was justified in doing what he did. But UM, the emotion that you could see when he took the stand, when he was in answering questions and explaining what happened

that night, that can be powerful for a jury. And can you know, really humanize him and see that he does struggle with what happened that night on a on a personal level, on a on an emotional level. Um. And and I you know, again, it wasn't a surprise what he said. I mean, we all pretty much knew what he was going to say, and he said it. But having him say it, and having him say it in the way that he did, UM, showing some emotion about it, and UM, you know, I think that was important.

And I and the danger with putting him on the stand is that the prosecution can cross examine him. UM. But I thought during the cross examination, once again, I think he was a very well prepared witness and acquitted himself fairly well. He took the opportunity when the prosecution

gave it to him on cross too tell his story. UM. And I think in any case where they're where you're asking the jury to kind of put themselves into the perspective of the defendant, to view things through the eyes of the defendant on that evening and make a decision about whether or not their conduct was reasonable. UM. Hearing directly from the defendant is really important. It struck me that he said I didn't do anything wrong. I defended myself.

It seemed like there wasn't remorse. I think he's actually in a difficult spot when he's on the stand about that because UM and and and this will have come from, you know, discussions with his defense lawyers, and I have to say, I want to just caution listeners to UM. It's perfectly normal and part of UM, you know, part of trial strategy, UM, to prepare witnesses to get on the stand. And I mean you could see Mr Grosscroiz was also a very well prepared witness and often would

answer when he was asked questions. He would turn and speak directly to the jury, which is something that you encourage witnesses to do so. So I don't want to suggest any lawyer was acting improperly, but I think I'm I'm quite certain that when they were discussing Mr. Rittenhouse testimony, I'm i'm certain that the issue of what level of responsibility and remorse should he show on the stand, What

what should he say? Um And? I would expect his lawyers probably counseled him that if he felt he was justified in shooting, which that that has been his testimony, that's been his position, he should hold to that position, um and. And he should not say that he feels bad or remorseful about what happened. He should stick to maintaining his claim that he was justified in doing what he did. Um And. So it's a difficult place for

him to be on the stand. Um. I can't imagine any person who takes the life of another human being not feeling some remorse for doing that, especially under these circumstances. But whether or not, the lawyers sort of counseled him that that was a good thing to say on the stand, right because it it might lessen his claim that he was justified. UM. I'm sure that entered into the calculation. So so I think that's the sort of tight rope he was trying to walk on the stand. It did.

Did the prosecutor accomplish anything during his cross examination? I mean, it seemed like Written House was really well prepared by his own counsel. Did the prosecutor make any headway at all? Not very much. UM. I think part of it is because Written House was very prepared. Um. You know, you know, you know, you tell witnesses to to not get an arguments or debates, you know with the person cross examining you, um,

you know, answer the questions put to you briefly, accurately. Um. So he was definitely a witness who was well prepared to be subjected to cross examination. Uh. If there was one thing that the prosecution perhaps accomplished um during cross examination, it was to get him to admit that he had that gun illegally, that he had um gotten someone to purchase for him because he knew he wasn't allowed to

have it. UM. But I think again, I think that's part of Ultimately it's going to be part of the defense strategy to concede that point and say, yes, he was guilty of the misdemeanor of going armed while under eighteen, but he was not guilty of the other charges that he's he's been accused of. Does it seem as if a focus of the jury will be on looking at

those videos and analyzing what went on. Yes, And I think there's an interesting point that should be made here is that the lawyers throughout the trial asked people on the stand about the videos with some regularity, Like there was a fair amount of questioning where the defense and the prosecution would play a video and ask the witness, well, what did you hear on that video or what do

you see on the video? I think people should should keep in mind that those videos are in evidence, and what that essentially means is that when the jury goes

back to deliberate, they can watch the videos themselves. They can watch the videos as many times as they want, They can fast forward and freeze frame and and listen to what people are saying on those videos, and ultimately, whatever the witnesses said they think the videos show the jury is going to watch and listen to the video and watch the video listening audio, and they're going to

make the decision for themselves about what it shows. UM. And and again an interesting point that I think was made UM recently in the trial by the the expert called by the defense who who uses who analyzes use of force and uses video. He sort of cautions the jury to say, look, we're slowing this down second by second, Um, but that's not how people experienced or perceived the events because we can't we can't stop the video in real life and make a calculated decision about whether use of

force should be used or not. So so yeah, I think I think the video will be a critical part of the jury's analysis here. And also not just in the you know, checking frame by frame what happened, but also in playing it in real time and trying to get a sense of what the environment on the street of Kenosho, what it was like to be there that evening. Once he raises self defense, the prosecution has to disprove the at beyond a reasonable doubt. Yes, this is something

that UM is. It's not unique to Wisconsin law. Other states have this approach as well, but um. Oftentimes, if a defendant raises a type of affirmative defense, which self defenses, so so essentially an affirmative defense is the defendant is saying, yes, I did the acts that would normally be considered criminal, I shot the person, but I have an affirmative defense. I'm putting forth evidence to suggest that I did it, but only did it because I was acting in self defense.

Once the defendant does that, Once the defendant, under Wisconsin law and the law of many other states, put self defense at issue, once there's some evidence that the defendant may have been acting in self defense, the prosecution now has to disprove that beyond a reasonable doubt. So there is what we would call a burden of production on the defense. They have to present evidence that they were

acting in self defense. But once they do that, now the prosecution has to disprove it beyond a reasonable doubt. And frankly, in this particular case, I think that's going

to be challenging for the prosecution to do that. Explain why you think that, well, I mean, just the the the allegation or the the the evidence that Mr Rittenhouse is presented and even the prosecution has presented suggests that at various times throughout the evening when he did shoot at people, UM, that the people were moving toward him or attempting to strike him, or even in the case of Mr Grosscroyd's was actually armed and by his own admission,

pointing a gun at him. UM. Under those circumstances, the prosecution is going to be required to prove beyond a reasonable out that he wasn't acting in self defense. He doesn't have to prove beyond a reasonable doubt that he was UM. But it's it's gonna be challenging for the prosecution to do that because especially with not the initial shooting necessarily with Mr Rosenbaum, but the subsequent shootings that

occurred that night. UM. Even the prosecution's witnesses Mr particularly Mr gross Froyd, said I thought he was in danger. I thought this group of people was pursuing him, trying to assault him at times, and his own testimony said I moved towards him because I thought he was going

to get hurt. So if you have a prosecution witness who was shot by him making statements on the stand to say I feared that he was in danger, and that prosecution witness also says, I was carrying a concealed weapon and began to point it at him when he shot me. It's I think it's going to be very difficult for the prosecution to meet that burden of disproving that he had a reasonable belief and was acting in self defense at those moments when he fired. Thanks for

being on the show. That's John Gross, the professor at the University of Wisconsin Law School and director of the Public Defender Project. DC. Federal Judge Tanya Chukkin denied former President Trump's request for an injunction to prevent the National Archives from releasing documents to the US House panel investigating the January six Capital Riot. Typically, executive privileges reserved for the current occupant of the White House, but in this case,

President Joe Biden has waived it. Trump's lawyers argued that a former president should maintain some ability to invoke executive privilege, joining me as former federal prosecutor Robert Mintz, a partner mcarter in English, Bob tell us about Trump's claim here.

Former President Trump was seeking to block the release of documents thought by the U S House panel investigating the January six Capital Riot and the President's legal team was relying essentially on the doctrine of executive privilege, saying that although he was no longer the president, he still had the ability to assert executive privilege over notes and internal workings within the White House and among his staff related to events surrounding the January six riots. A DC federal

judge denied Trump's request for an injunction. Tell us why the disrecorded judge rejected the Trump argument that he's entitled to keep these records secret from Congress. The judge said that the executive privilege that the Trump legal team relied on exists to protect the executive branch, not an individual. The judge was very explicit and said that the incumbent president in this case, President Biden, and not the former president, is in the best position to evaluate the long term

interest of the eecutive branch. In this case, we had a situation where former President Trump was seeking to invoke executive privilege, but the current president, President Biden, had reviewed the same information and decided to waive the privilege on behalf of the executive branch. The judge came down on the side of the sitting president rather than the former president. That said that that information had to be turned over. She said, presidents are not kings and plaintiff is not president.

Some of the records that Trump is trying to keep from the Select Committee include things like the daily presidential diaries, schedules, appointments of White House visitors, call logs, drafts of speech, or correspondence related to the insurrection. Some of that seems to be not in the realm of executive privilege, like white House visitors or presidential schedule call loggs. Even if you thought there was executive privilege, it doesn't seem like

those would be part of it. Well, that's a good point, because let's remember what executive privilege is and how it's supposed to work. The doctrine of executive privilege was really created in order to protect the internal communications within the White House and with the President of United States. Prior court rulings have established that this doctrine is a balancing test. In other words, it's a qualified privilege, it's not an

absolute privilege. The argument in favor of privilege is that the president needs to be given candid advice in order to be effective. In other words, in order to be effective, a president needs to be able to consult with his advisors and to get the right kind of of advice, and there has to be some level of confidence that that advice will remain confidential or the fears that people will withhold that candid advice for fear that will become

public someday. So in an instance where a president is facing a particularly difficult situation, it's not unusual for his aids to give him several options as to what he might do, and some of the those options may be unpopular. So in order to protect that candidate advice, the executive privilege says that that information should remain private and should

not be disclosed to the public. The biggest argument on the other side of executive privilege is that you don't want to president and his aids to use executive privilege

to hide wrongdoing. In other words, if the reason for refusing to turn over the information is not the need to protect confidential communications with the president, but in order to hide some kind of wrongdoing at the highest level of government, that is a reason to overrule executive privilege and to make sure that information is available to the public. Trump is going to appeal this to the d C Circuit. The panel there could reverse the judge's decision or affirm it.

It could go to an ombank panel or even possibly to the Supreme Court. So the question is time, how much time before the committee actually gets the documents. Well, as it stands right now, these records are with the National Archives, and the National Archives has indicated that they will be turning over those records to the committee as of Friday, barring some kind of court ruling that tells

them not to do that. So in this case, the question is will you Appeals Court step in or protected the U. S. Supreme Court to slow this process down? And the reason that's so important is that if it's slowed down enough to get past the next round of elections, and it's possible that the House of Representatives will be controlled by the Republicans, this committee could be disbanded and

ultimately this information could be never made public. In addition to executive privilege, Trump made another argument that the judge rejected. Tell us about that. One other argument that Trump legal team made in order to oppose turning over this information was to suggest that the information being sought by Congress was not for a legitimate legislative purpose. Ultimately, Congress can suppina information, but they can't really do their own investigations

unless it's tied to some type of legislation. In this case, the court found that the House had every interest in examining all aspects of January six to consider legislation to prevent six events from ever occurring again. So she really dismissed the Trump argument that this was a witch hunt, that this was being done for political purposes, and she agreed with Congress that the information sought was tied to a legitimate legislative purpose and therefore the subpoenas, although they

were quite broad, were enforceable. Bob. Typically executive privileges reserved for the current occupant of the White House, but in this case, so in the past, how have other presidents dealt with the issue of executive privilege. Well, first, let's recognize that the information here that we're fighting about is not in the possession of the current president or the past president. This information is being stored by the National Archives.

And in the past what has happened is there has been a request that would otherwise potentially be privileged regarding a prior presidency. Representative of the current president would reach out to the prior president to consult with them about whether or not there should be an assertion of privilege, but ultimately the decision as to whether or not to assert that privilege would be decided by the sitting president.

In the past, that is the way these issues have been resolved, and they have not made it to the courts, which is why there's not a lot of law on this issue of a past president asserting executive privilege as the documents that the current president believes ought to be turned over to the public. The most famous case about executive privilege is, of course, the case involving President Richard Nixon. The idea that presidents should keep some government information secret

is nothing new. It actually dates back to George Washington, but it wasn't really until the eisenhowerd administration that the term executive privilege was coined, and of course it first made its way into the work in nineteen seventy three involving the famous Richard Nixon Watergate tape case. In that case, President Nixon was trying to shield the tapes that his office had recorded from Congress by claiming executive privilege. As we all know, the court ruled against President Nixon and

he was required to turn over those tapes. But there is actually a Supreme Court case, again involving former President Nixon that does stand for the proposition and a former president has some ability to assert executive privilege even though they are no longer in office. That was a case in which the Government Services Administration was supposed to take

custody of Nixon's papers and tapes. Now, in that case, the Supreme Court ultimately ruled against Nixon has said that the information had to be turned over, But the Supreme Court did say that a former president has some limited right to assert executive privilege in certain circumstances. There have not been other cases since them, and so the scope and the full impact of that court decision has not

yet been tested. But that was the case that the Trump team relied upon and has continued to rely upon in asserting the right of a former president to astirt executive privilege even in the face of a sitting president deciding that the information ought to be disclosed. The January six House Committee, which is made up of seven Democrats and two Republicans, began investigating the Capital Riot over the summer.

In addition to seeking records from Trump, the panel has subpoena documents and testimony from former Trump advisors, and the House Committee issued ten new subpoenas on Tuesday, closing in

on Trump's inner circle at the White House. Now, other members of the Trump administration, like former advisor Steve Bannon and former Joice Department official Jeffrey Clark, have refused to comply with Committee subpoenas, but Democratic Congressman Adam Schiff, who was a member of the committee, said he expects these latest witness is to comply with the subpoenas. We expect them to do their lawful duty, which means they've been given a subpoena, they're compelled to appear. We expect them

to compare, appear and provide their documents. It's our expectation that the Justice Department will prosecute those who do not comply with lawful subpoenas um and I think that will send a powerful message to others that you know, the rule of law is back. Of course, the Johnstone Department has not decided whether or not to go forward with

criminal contempt proceedings for Bannon. Bob tell us about the latest subpoenas, So the committee has recently subpoena ten additional Trump administration officials, including former senior presidential advisor Stephen Miller for a White House Press Secretary Kaylee MCINNINNY. Other subpoenas

included President Trump's former personal assistant. So they're casting a very broad net here trying to get information from all of the president's aids who were involved with the president during January six, including a people who may have had information with others outside the White House, particularly those who may have involved in organizing the Stop the Steel rally that led to the riots at the Capitol on January six.

So some have already said, like former New York City Police Commissioner Bernie Carrick has already said, I'm not going to comply with the subpoena. What can the committee do? Those who are refusing to cooperate are relying on President Trump's assertion of executive privilege as a basis for not cooperating with the committee, So that decision really has to be resolved before those witnesses can be forced to testify it.

But in the meantime, former presidential aid Steve Batten has already been found in contempt by Congress for philling to comply with its demand that he testify and turnover documents, and the House has forwarded that action over to the

Justice Department for potential criminal prosecution. That is something that has rarely been done in the past, and Attorney General Merrick Garland has not indicated whether or not he is going to use the Department of Justice to pursue criminal charges against Steve Bannon and others who are refusing to cooperate. Congress is now just waiting for Merrick Garland to decide whether or not he is going to proceed with the criminal prosecution of Steve Bannon. Thanks for being on the show, Bob.

That's former federal prosecutor Robert Mints, a partner mcarter and English. And that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, slash podcast Slash Law, and remember to tune into The Bloomberg Law Show every week night at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg