UNBIASED - May 28, 2024: Justice Gorsuch Publicizes Passionate Dissent, 'Hush Money' Trial Closing Arguments, Louisiana Criminalizes Possession of Abortion Medications, and More.

Episode Date: May 28, 2024

1. From Friday: Louisiana Becomes First State to Criminalize Possession of Abortion Medication (1:01)2. Supreme Court Releases New Orders; Justice Gorsuch Publicizes Passionate Dissent (3:46)3. Trump's Defense Team Presents Closing Arguments in Hush Money Trial; Prosecution's Closing Arguments Remain Ongoing (10:57)4. Quick Hitters: T-Mobile/US Cellular Deal, Special Counsel's Gag Order Request Denied in Classified Documents Case, US-Built Pier in Gaza Breaks Apart, Democratic National Committee to Vote on Virtual Proceedings to Get Biden/Harris on Ohio Ballot (15:13)Watch this episode on YouTube.Follow Jordan on Instagram and TikTok.All sources for this episode can be found here.  Learn more about your ad choices. Visit podcastchoices.com/adchoices

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call the Conax Ontario helpline at 1-866-531-2600. BetMGM operates pursuant to an operating agreement with iGaming Ontario. Welcome back to Unbiased, your favorite source of unbiased news and legal analysis. Welcome back to Unbiased. Today is Tuesday, May 28th, and this is your daily news rundown. If you love the unbiased approach that this episode provides and you feel more informed after listening, please go ahead and leave my show a review on whatever platform you listen, share the show with your friends. If you're watching on YouTube, hit that thumbs up button, subscribe to the channel. All of those things really help me out because let me tell you, the negative people, they're always the loudest ones in the room. So it really helps me out when those of you that love this show and appreciate the show, take the time

to tell others why unbiased is so great. And I thank you very much in advance. Just as a reminder, my news cycle ends at 3 p.m. Eastern time every day. So anything noteworthy that happens after that time will always be covered in the following day's episode. But again, news cycle ends at 3 p.m. Eastern time each day. Without further ado, let's get into today's stories. Let's start with a story from last week. It was one of the bigger stories at the end of the week that I didn't get a chance to cover and felt needed a little bit of clarity. It was about Louisiana's new state law that classifies certain abortion medications as controlled substances. So here's the deal. It's called, well, the bill was called SB 276, but it's now been signed into law. And it does a couple of things. Number one,

it creates a new crime in the state called coerced criminal abortion by means of fraud. This is a crime that's committed when a person uses an abortion-inducing drug on a woman without that woman's knowledge or consent. In this situation, if the abortion is induced at less than three months gestational age, the prison sentence ranges from five to 10 years and between $10,000 and $75,000 in civil penalties. If the abortion is induced at more than three months gestational age, the prison sentence ranges from 10 to 20 years and the civil penalties range from $50,000 to $100,000. Again, that is a new crime called criminal abortion by means of fraud.

The second part of the bill is where the drug classification comes into play. So Mifepristone and Mifepristol are two abortion-inducing drugs generally used together to successfully complete an abortion. What Louisiana's law says is that it is unlawful for any person to knowingly or intentionally possess a Schedule IV substance, which now includes mifepristone and mifepristol, unless the substance was prescribed by a doctor. In other words, if you have mifepristone or mifepristol in your possession and it has been prescribed to you, you are fine. You're not breaking the law. But if you don't have a prescription, this law makes possession of either of those drugs a crime, which subjects you to maximum five years in prison.

However, there's an important distinction here. This law specifically excludes pregnant women. So it is not unlawful for a pregnant woman to possess either of those abortion drugs, whether or not she has a prescription for it. Even if a pregnant woman does not have a prescription, she can still have mifepristone or mifepristol in her possession lawfully, so long as it's being used for her own consumption. So pregnant women specifically carved out of this law, but just to be clear, in Louisiana, under this new law, people cannot be in possession of mifepristone or mifepristol without a prescription, excluding pregnant women, and a person cannot induce an abortion on a woman without that woman's knowledge or consent. So that's a little bit about Louisiana's law,

just wanted to clarify what the law says. But now let's move on to some stories from today, because today marked the first day of the working week. So the Supreme Court released some orders. There's only a couple of orders that are worth talking about, but I do want to talk about them nonetheless. However, I would first like to go over what an order from the court is. An order is different than an opinion in a lot of ways. First, an order in a case comes before the case is even heard by the justices. In fact, the most common orders are those orders that either grant or deny the review of the actual merits of a case. These orders are known as either orders granting

certiorari or orders denying certiorari. So the appealing party would petition the Supreme Court to hear the merits of their case. And in doing this, they petition the court for a writ of certiorari. And from there, the Supreme Court either grants or denies that petition. Way more of these petitions are denied than granted. As an example, in today's order list, there was only one petition granted and 83 petitions denied. And just so you know, for a petition to be granted, at least four of the justices have to agree to grant it. It actually doesn't require the simple majority of five. With that said, let's talk about the one petition that was granted today, meaning the justices will hear the merits of the case next term.

It's a case called San Francisco v. EPA. It's not the most interesting case, but it's still worth talking about just so you have an idea of the issue the justices will be deciding in the somewhat near future. In short, the EPA issued San Francisco what's called a National Pollutant Discharge Elimination System permit. And this permit imposes limitations on what the city of San Francisco can discharge into the Pacific Ocean. Following the imposition, though, the city of San Francisco challenged two of the limitations imposed on it, arguing that the limitations violated the Clean Water Act by not identifying specific limits on the city's discharge. On appeal, the Ninth Circuit Court of Appeals ruled in favor of the EPA, finding that the limitations placed on the city did not violate the Clean Water Act. San Francisco then petitioned the Supreme Court for review, and today the Supreme Court

granted that petition. So next term, which starts in October and goes through April, the justices will have to decide whether the challenged limitations imposed by the EPA violate the Clean Water Act by failing to identify specific limits to which San Francisco's discharge must conform. As I said, not super interesting, but given the rarity of the Supreme Court actually granting a petition for review, I wanted to mention it anyway. Now, another thing that separates orders from opinions is that with orders, the justices don't have to specify how they voted or why. They can, but they don't have to. That's why when order lists are released, more often than not, it'll just say granted or denied. There's no additional explanation. However, in some instances, justices can publicize how they

voted and why they voted that way. Usually we'll see this happen if a justice is particularly passionate about a subject matter, but the majority of the court rules the other way. And today this happened in a case called Cunningham v. Florida. Cunningham v. Florida, if the court would have agreed to hear the merits of the case, which it didn't, would have presented the court with the question of whether the Constitution guarantees the right to a trial by a 12-person jury when the defendant is charged with a felony. In this particular case, Cunningham was convicted by a 12-person jury when the defendant is charged with a felony. In this particular case, Cunningham was convicted by a six-person jury for various felonies, sentenced to eight years in

prison, and on appeal, Cunningham argued that she was entitled to a 12-person jury under the 6th and 14th amendments, but the court ruled against her. So she took it to the Supreme Court, and as I said, the Supreme Court. And as I said, the Supreme Court declined to hear the merits of the case, meaning this case will end with the lower court's ruling. But Justice Gorsuch publicized his dissent from the majority's decision not to hear the case. And this is something that you can tell he feels very passionately about. And this is why the rare publicized dissents are so fascinating, because you are able to get in the head of whichever justice is writing the dissent in a

way that you usually aren't able to. So in today's dissent, Gorsuch wrote in part, quote, For almost all of this nation's history and centuries before that, the right to trial by jury for serious criminal offenses meant the right to a trial before 12 members of the community, End quote. this case, a Florida court sent Natoya Cunningham to prison for eight years on the say of just six people, end quote. Gorsuch then goes on to explain that in 1970, the Supreme Court ruled in a case called Williams v. Florida that for the first time, six member jury panels were permissible in criminal cases. And Gorsuch says that in doing that, the court turned its back on the original meaning of the Constitution. And before the decision in Williams, the Supreme Court had said that it wasn't even a question that a jury should consist of 12 people. So Gorsuch's dissent

continues. And this is where his passion really comes through. He says, quote, really, given the history of the jury trial right before Williams, it was nearly unthinkable to suggest that the Sixth Amendment's right to a trial by jury is satisfied by any lesser number. Yet Williams made the unthinkable a reality. In doing so, it substituted bad social science for careful attention to the Constitution's original meaning. Pointing to academic studies, Williams tepidly predicted that six-member panels would, quote, probably deliberate just as carefully as 12-member juries. But almost before the ink could dry on the court's opinion, the social science studies on which it relied came under scrutiny.

If there are not yet four votes on this court to take up the question whether Williams should be overruled, I can only hope someday there will be. In the meantime, nothing prevents the people of Florida and other affected states from revising their jury practices to ensure no government in this country may send a person to prison without the unanimous assent of 12 of his peers. If we will not presently shoulder the burden of correcting our own mistake, they have the power to do so. For no less than this court, the American people serve as guardians of our enduring constitution. End quote.

So as I said, you can tell that Justice Gorsuch is particularly passionate about this issue, something we wouldn't have necessarily known about him had Cunningham not been presented to the court for review. Now, the justices will be releasing opinions on Thursday, and as I've said before, the opinions tend to get more interesting as we get closer to the end of June, so stay tuned for Thursday's episode. In some other news from today, Trump's hush money trial wrapped up with the defense, or I should say it's wrapping up with the defense and the prosecution both presenting closing arguments. At the time I'm recording this, the prosecution is still closing. But what we know from the defense is this. The defense in

its closing argument really relied in large part on Michael Cohen's credibility or lack thereof. And we knew this was going to be the case from the start. Why? Because the charges against Trump, which are that he falsified records of payments to Michael Cohen with the intent to commit another crime, rely almost entirely on Michael Cohen's testimony. Michael Cohen is the only person besides Trump himself and Allen Weisselberg, who's currently in jail so he didn't testify, that knows what he and Trump talked about in regard to the payment to Stormy Daniels, why the payment to Stormy Daniels was being made, and how Michael Cohen would be reimbursed for it from Trump. But remember, it's not the payment Michael Cohen made to Stormy Daniels to cover up the

story about the affair that's at issue. Hush money payments are not illegal, right? The issue here is how Trump's reimbursements to Michael Cohen for that payment were accounted for on the books and whether Trump had the intention of committing another crime when he made those reimbursements. So Michael Cohen really is the star witness, as they call it. Now, that other crime that the prosecution says Trump had the intent to commit, it could be a violation of campaign finance laws, it could be unlawfully influencing the 2016 election, any crime at all, so long as the prosecution can prove beyond a

reasonable doubt that Trump not only falsified business records in classifying his payments to Michael Cohen as a legal retainer rather than a reimbursement, and that Trump falsely classified those payments with the intent of committing another crime, the prosecution can get a guilty conviction. And that's also why the main objective of the defense is to raise reasonable doubt. If the defense can raise reasonable doubt as to Trump's falsification of business records and intent to commit another crime, then Trump is entitled to an acquittal. So the defense really focused in the closing arguments on raising doubt. That's the last thing that the defense wants the jury to hear before the jury goes back and deliberates.

So there were essentially 10 reasons that the defense laid out as to why the jury goes back and deliberates. So there were essentially 10 reasons that the defense laid out as to why the jury should have reasonable doubt. And some of these may not make sense if you haven't been following the trial, but here's what they are. Number one, Michael Cohen, not Donald Trump, created the invoices for a legal retainer. Number two, there's no evidence Trump knew the invoices were sent. Number three, there's no evidence Trump knew the invoices were sent. Number three, there's no evidence of any intent to defraud. This speaks to the intent to commit another crime. Four, there was no attempt to commit or conceal another crime. Five, there was no agreement to influence the 2016 election. Six, American media would have run the doorman story no matter what

if it were true but it wasn't true and that's why the story didn't run seven karen mcdougall didn't want her story published eight stormy daniel story was already public in 2011 nine there was manipulation of evidence and 10 michael cohen himself is the quote human embodiment of reasonable doubt end quote and this is because of Michael Cohen's history of lying. So again, the defense really focused on raising reasonable doubt. Now it's the prosecution's turn to bring back their case and sort of erase any reasonable doubt that the defense may have raised. And that will be the last thing the jury hears before they start

to deliberate because in this case, the prosecution is getting the final say. Now, I do anticipate the jury will start deliberating tomorrow because the prosecutor said he expects his closing argument to take between four and four and a half hours. And that puts us through the end of the day today and then in the morning tomorrow. Now, if the jury does start to deliberate tomorrow, we may even have a verdict tomorrow. It depends how long the jury needs to deliberate, but I will keep you posted either way. Now let's finish this episode with some quick hitters. T-Mobile announced today that it will acquire most of U.S. Cellular in a $4.4 billion deal. The agreement would grant T-Mobile an additional 4 million

customers, hundreds of brick-and-mortar stores, and expand T-Mobile's Spectrum rights, which are exclusive rights to use a frequency band to transmit signals. However, this deal is not expected to be finalized until the middle of next year. Number two, the judge overseeing Trump's classified documents case denied special counsel Jack Smith's request for a gag order that would have prevented Trump from making public statements that, quote, pose a significant, imminent, and foreseeable danger to law enforcement agents. that FBI agents who searched Mar-a-Lago were authorized to shoot him and were ready to take him out. What Trump was referring to was a disclosure in a document called a use of force policy. A use of force policy prohibits the use of deadly force in searches, except when the officer conducting the search has reason to believe that the subject of the search poses an imminent danger of death or serious injury to either the officer or another person.

In that case, deadly force is warranted. Ultimately, Judge Cannon denied Smith's request to gag Trump and actually reprimanded Smith for not making more efforts to converse with Trump's attorneys before bringing the issue to the court. Judge Cannon did not rule out not granting Smith's request in the future, but said that prosecutors will need to further talk to Trump's team over the issue before she considers the request again. Number three, the temporary pier constructed by the United States military off the coast of Gaza to transport aid inland has broken apart. Four United States officials said the wider part of the pier at the end of the pier, which is the parking and drop-off point, disconnected from the narrow causeway due to rough seas. The disconnect came one day after four U.S. Army ships broke free of their moorings,

and two of the ships were beached in Israel, also due to rough seas. So from here, the disconnected piece will have to be reconnected before the peer can be used again. And finally, the Democratic National Committee announced today that it will move to conduct virtual party proceedings to certify President Biden and Vice President Harris as the Democratic nominees before Ohio's August 7th ballot certification deadline. The DNC's in-person convention, which is typically where the nomination would happen, is scheduled for August 19th, but that's too late to get Biden on Ohio's ballot because of Ohio's deadline. So the DNC Rules and Bylaws Committee will need to vote a week from today on a resolution to propose changes to allow for virtual party proceedings, and assuming that resolution passes, the resolution will then be voted on and adopted by the full DNC membership

before it can take effect. That is what I have for you today. I hope you have a great rest of your evening and I will talk to you tomorrow.