• Transcript
  • Show Notes

In this episode of CAFE Insider, Preet and Anne break down the shootings in Boulder, Colorado, and Atlanta, Georgia, the judge’s decision in the Derek Chauvin case to keep the trial on schedule in Minneapolis, and the charges against two men accused of assaulting late Capitol police officer Brian Sicknick during the Capitol insurrection.

We hope you’re finding CAFE Insider informative. Email us at [email protected] with your suggestions and questions for Preet and Anne. 

This podcast is produced by CAFE Studios. 

Tamara Sepper – Executive Producer; Adam Waller – Senior Editorial Producer; Matthew Billy – Audio Producer; Jake Kaplan – Editorial Producer

REFERENCES & SUPPLEMENTAL MATERIALS

BOULDER SHOOTING

“Suspect in Colorado grocery store shooting charged with 10 counts of murder, police say,” CNN, 3/23/21

“The first officer who responded to a mass shooting in Boulder was killed. He leaves behind seven children,” CNN, 3/23/21

“Boulder Police Press Conference Transcript on Supermarket Shooting,” Rev, 3/22/21

ATLANTA SHOOTING

18 U.S. Code §249 – Hate crime acts

GA Code §17-10-17. Sentencing of defendants guilty of crimes involving bias or prejudice

GA Code §16-5-1. Murder; malice murder; murder in the second degree

GA Code §16-5-21. Aggravated assault

“Georgia shootings could test state’s new hate-crimes law as debate rages over suspect’s motive,” WaPo, 3/18/21

“Captain who said spa shootings suspect had ‘bad day’ no longer a spokesman on case, official says,” WaPo, 3/18/21

“8 dead in Atlanta-area spa shootings, suspect arrested,” NBC News, 3/16/21

DEREK CHAUVIN

“CAFE Insider 3/16: Murder in the Third,” CAFE Insider

MN Stat §609.19. Murder in the second degree

MN Stat §609.195. Murder in the third degree

MN Stat §609.205. Manslaughter in the second degree

“Alan Dershowitz: Not moving Derek Chauvin trial out of Minneapolis ‘serious constitutional mistake,’” Fox News, 3/20/21

“Derek Chauvin trial judge denies motions for delay and change of venue,” WaPo, 3/19/21

“Derek Chauvin Trial Judge Allows Evidence that George Floyd Ingested Drugs, Suffered Heart Trouble in May 2019 Police Stop,” Law&Crime, 3/19/21

“Derek Chauvin trial: Judge dismisses two seated jurors who heard about George Floyd family settlement,” WaPo, 3/17/21

“City reaches $27 million settlement agreement in civil lawsuit filed by George Floyd’s family,” City of Minneapolis, 3/12/21

CAPITOL INSURRECTION

18 U.S. Code §2384 – Seditious conspiracy

18 U.S. Code §371 – Conspiracy to commit offense or to defraud United States

18 U.S. Code §1111 – Murder

18 U.S. Code §111 – Assaulting, resisting, or impeding certain officers or employees

18 U.S. Code §372 – Conspiracy to impede or injure officer

U.S. v Julian Elie Khater and George Pierre Tanios, U.S. District Court for the District of Columbia, criminal complaint, 3/6/21

“Two Men Charged with Assaulting Federal Officers with Dangerous Weapon on January 6,” DOJ, 3/15/21

“Justice Dept. calls Jan. 6 ‘Capitol Attack’ probe one of largest in U.S. history, expects at least 400 to be charged,” WaPo, 3/12/21

“DOJ seeks to build large conspiracy case against Oath Keepers for Jan. 6 riot,” WaPo, 3/12/21

VIDEO: “Detailing the charges facing the Capitol rioters,” 60 Minutes, 3/21/21

SIDNEY POWELL

US Dominion, Inc. v. Sidney Powell, U.S. District Court for the District of Columbia, motion to dismiss, 3/22/21

What Constitutes a Hate Crime?

3/23/2021

With anti-Asian violence rising at an alarming rate, prosecutors across the country are evaluating whether to charge suspects with heightened crimes for targeted attacks. 

Following last week’s shooting in Atlanta in which a gunman killed eight people, including six Asian women, there has been a national conversation on anti-Asian racism and what constitutes a hate crime. Preet and Anne explain the significance of charging the suspect with a hate crime, and what implications the charge would have at trial. 

Meanwhile, it’s the final week of jury selection in the trial of Derek Chauvin, where the judge has rejected the defense’s attempts to delay or move the trial out of Minneapolis. Preet and Anne discuss the judge’s controversial decision to permit the defense to present some evidence of the victim George Floyd’s interactions with law enforcement in 2019.

And, the Department of Justice continues to investigate the January 6 insurrection at the Capitol. Preet and Anne break down the new charges brought against two men who are accused of assaulting the Capitol police officer who died the day after the attack.

Preet Bharara:

From CAFE, welcome to CAFE Insider. I’m Preet Bharara.

Anne Milgram:

And I’m Anne Milgram.

Preet Bharara:

How are you, Anne?

Anne Milgram:

I’m okay, Preet. How are you doing?

Preet Bharara:

Well, I’m doing very, very well. I was a little under the weather yesterday. Do you want to ask me why?

Anne Milgram:

I actually was about to ask you this. Did you get your second vaccine shot?

Preet Bharara:

I did. I got the second shot.

Anne Milgram:

Wow.

Preet Bharara:

The Pfizer vaccine at Jacob Javits, which I think I told folks, listeners, and wrote about it. Three weeks ago, the first jab, second jab at the same spot, Jacob Javits, on Sunday. It was less crowded, which anecdotally makes me think that lots and lots of more people are going to be able to get vaccinated. It has dropped to the age of 50 if you don’t have an underlying condition in New York. So, I’m hoping that people will get vaccinated as soon as possible.

Anne Milgram:

Yup, I just got my first shot also at Jacob Javits, also Pfizer. I don’t know if this happened when you were there, Preet, but I was there. They were giving, I think, 4,500 shots that day at Javits, which is obviously a massive location. But when I was waiting at the end, they have you wait for 15 or 20 minutes to make sure there’s no reaction. There was an orchestra.

Preet Bharara:

Oh, my gosh. We had an orchestra. There was an orchestra for me.

Anne Milgram:

Yeah, there was an orchestra. They were playing. It was such an amazing New York moment, and everyone was clapping. Look, I feel lucky that I’m now eligible in New York State. I think, it’s a great feeling to feel like… I mean, obviously, the pandemic is not over yet, but it felt like a great step forward.

Preet Bharara:

It definitely did. Yeah, to the extent people are monitoring reactions and different people have different reactions. I was fatigued yesterday, Monday, had some chills, but no fever. I just slept a bunch, drank a lot of water, took some Tylenol. I think I’m back to normal. So, I urge people to get their shots as soon as they can.

Anne Milgram:

Yeah.

Preet Bharara:

So, you’ll recall a time, Anne, before the pandemic since we’ve been doing the CAFE Insider show, where horrifically, it seemed like week after week, we were talking about a mass shooting.

Anne Milgram:

Yes.

Preet Bharara:

Though the last year has been terrible and awful, not just for America, but for the world and we’ve lost hundreds of thousands of people, the one thing we haven’t had to talk about really are these incidents of mass shootings, where many people die. It seems like that’s no longer so. In the last week alone, we’ve had two awful shootings, one in Atlanta, Georgia last week, which we’ll talk about.

Preet Bharara:

The other just last evening, Monday evening in Boulder, Colorado, which the reporting at this moment is there are 10 dead, including a Boulder police officer Eric Talley, 51 years old, a father of seven. We don’t know much about the shooter other than we know that the shooter was taken into custody “without incident” and did not kill himself and was not shot by police, but was injured-

Anne Milgram:

But was injured.

Preet Bharara:

… it appears.

Anne Milgram:

Yes, exactly. He was being treated.

Preet Bharara:

Does the motive matter?

Anne Milgram:

So, I think a couple things. One is it is early and I think law enforcement are being very cautious to figure out what happened before they release too much information. They were hesitant. You probably saw the first press conference last night as I did, where they didn’t even release the number of individuals who had been killed. They were frantically trying to reach family members before they did so. So, I think they’re trying to be as thoughtful as they can be. What they said repeatedly is, “This is going to take time. We have to do a thorough investigation.”

Anne Milgram:

So, the question of motive when it comes to under the law and we’re going to talk about this in Atlanta in a minute when we talk about hate crimes, but at this moment, we don’t know the motive in Colorado, but we do know that it will be prosecuted as a murder, as a homicide case. The police and law enforcement will work to understand the motive. They’ll work to do the timeline of what happened and when. So, in terms of as a legal matter at this moment in time, no. In terms of as an investigative matter to understand what happened, what was done, whether it could have been prevented is always a question you ask. It’s a piece of this.

Preet Bharara:

Yeah. They come up with better policies going forward and understand what the behavior is of certain people, but people should appreciate that other than in rare cases, like hate crimes, motive is almost never an element you have to prove at trial, but it is something that people wonder about. So, I’m assuming this was your experience, too. If you try to case against this shooter or anyone else, even in matters where motive is not an element, motive is distinct from intent, jurors want to know what the motive is. Prosecutors generally come up with a theory of motive, because it helps to tell the story, explain the story. Can I ask you questions? I didn’t actually watch the Boulder presser. I read about it afterwards. I saw a fair amount of criticism of it. Were you satisfied by it?

Anne Milgram:

I think those are two things. One was the police commander and the Boulder DA. I should say that I was a classmate of Michael Dougherty, who is the Boulder District Attorney in the Manhattan DA’s office. He is an excellent lawyer. He’s smart. He’s thoughtful. He is deliberative. I think that this matter’s in exceptionally good hands. So, I would say that as an initial matter that I know and respect Michael enormously. I think what they did last night is when they first came out, I would have liked them.

Anne Milgram:

I want to be really cautious in saying this, because when you sit in these chairs and something like this happens, this is devastating. You have 10 people who’ve lost their lives tragically. Most of them just went to a supermarket to buy groceries in the afternoon. You’ve got a police officer who’s been shot and killed. Those things just shake the police department and the DA’s office to the core. They have to work very, very methodically and thoughtfully. So, I think what happened last night, when they first came out, they did not give a lot of information. I think they were just being very cautious. They wouldn’t give out the number of people who had been murdered.

Anne Milgram:

I think Michael ultimately said what they should have just said up front, which is, “We’re still trying to reach family members. Until we do that, we can’t release information.” And then the other question is, “Should they have waited another hour to alert family members to be able to go out and say that there are 10 people who tragically lost their lives? We have one suspect in custody. We don’t believe that there were others who were involved,” and just reassuring the public giving out information. I mean, you know this. It may be a little bit different in the federal system, but in the state system, at least, it’s very dynamic when something like this happens.

Anne Milgram:

You really have to balance giving information to the public with making sure that you’ve done the right thing by the families and also that you do the right thing by the investigation. So, here, I don’t think that was as much of an issue, but it’s a balance. So, I understand the criticism, but I also think that these folks, I thought that they had a lot of integrity and that they were trying to do the right thing, even if they might have not done it exactly how it would have come out a little bit more effectively with the public.

Preet Bharara:

The other shooting, Anne, also tragic, in Atlanta, Georgia, it took place just a few hours after we taped last week’s show, eight people dead, including six Asian American women. Shootings that appear to have been done by one individual at three massage parlors in the Atlanta area.

Anne Milgram:

Yeah. Preet, this really is the latest tragedy in a disturbing trend of violence against people of Asian descent in the United States. I read an article this morning that there were five assaults on Asian Americans in New York City over the weekend. Four of which they’re looking to charge as hate crimes. We got a great question from one of our listeners. We just started this conversation, but I think it’s an important conversation. The tweet was from @auntfun. Why does it matter if it’s a “hate crime”? The person who attacked my family members should be held responsible, regardless of motive, right?

Anne Milgram:

So, I think that’s an interesting starting place, which is just to say that when you think about hate crimes, there is an underlying crime here in Atlanta, the suspect will be charged with murder. There were eight people who were killed. There was a ninth man who was seriously wounded, injured in those events. So, obviously, murder is always a charge, but the question is, “Would you also charge it as a hate crime?” What that gives you when it’s charged is a sentencing enhancement, meaning that it ups the penalty of the crime. So, it depends on whether it’s a Georgia case… Georgia has a new hate crimes law that we can talk about. … or it’s a federal case, but there’s an additional penalty in terms of sentencing if you can prove that it’s a hate crime.

Preet Bharara:

Although in certain cases like the case in Georgia, in which murder will be charged, the statute says very clearly, “A person convicted of the offense of murder shall be punished by death, by imprisonment for life without parole or imprisonment for life.” In circumstances where the underlying crime, whether you have motive of hate or not, is the most extreme punishment you can have, there’s no enhancement that really does the job of greater punishment. What it does do, we’ve talked about this on the show many times, is in cases like this, it’s a statement of the community and law enforcement to say, “We value members of the community, all members of the community, minorities and everyone else.”

Preet Bharara:

Attacks on people, whether it results in death or not, if it’s because of their membership in a particular ethnic group or racial group, that’s worse. There’s something bad about that that society condemns. In cases like this, it doesn’t make a big difference or any difference at all in the punishment, but I think one of the reasons you’re hearing a lot of people talking about it is it’s very important for communities to recognize and to fight against that kind of thing. By the way, in this case, there were a number of murders. In other cases where there’s just an assault, like you’ve seen in New York, the enhancement makes a big difference.

Anne Milgram:

There’s also two additional points that are worth making. I think all states now have hate crimes laws. That wasn’t always the case. So, for a period of time, it was one of the ways that you would get federal jurisdiction over violent crime is if it was a hate crime, if it was based on race or religion or other protected categories. So, that’s been something historically, that has allowed the FBI and others to engage and investigate crimes that otherwise would be just local state crimes.

Anne Milgram:

Another point related to what you’re talking about is the importance to the community. I think that this is a really important part of the conversation, because if you think about the way a prosecutor’s office could operate, they could easily say a version of what you just said, which is… I’m not saying this as your position, but the beginning point, which is if you charge a homicide, you have certain elements to prove.

Anne Milgram:

Obviously, an intentional killing here would be the essential charge. And then you go to the jury on that. If you add the hate crime enhancement or just the hate crime charge, you also have to prove the motive. Here, it would be the fact that these were either people of Asian descent or that they were women. It could be either or both. So, you’re essentially proving additional things. So, the tension there is that, you and I talk about a lot, prosecutors want to simplify cases. You never want to have to prove more than you need to before a jury.

Anne Milgram:

So, there’s a tension there, but my view is very similar to yours on this, which is that it is a really important statement about when someone’s motivation is based on hate, based on race, religion, gender, protected national origin. It is really critically important for the community to have those elements charged, where they can be charged. This is still part of the investigation. So, I want to say, you and I are talking about as though we know for certain that they can charge it. It appears here that there’s a lot of evidence that would lean in that direction, but the case is obviously still unfolding.

Preet Bharara:

Yeah, I mean, look, I think you mentioned the Georgia hate crime law is a recent vintage, just in the last year. My understanding is it came about because of a case that you and I have discussed before on the show involving hate crime, involving a victim named Ahmaud Arbery. It was reaction to that case that caused the Georgia legislature to enact this hate crime.

Preet Bharara:

The statute reads… It mimics or mirrors some other laws around the country. “… if it is determined beyond a reasonable doubt that the defendant intentionally selected any victim or group of victims, et cetera, because of such victim’s or group of victims’ actual or perceived race, color, religion, national origin, sex, sexual orientation, gender, mental disability or physical disability,” that could constitute a hate crime.

Preet Bharara:

Here, in Atlanta, I know, we’re saying it’s not clear how much evidence they have to prove any particular prong of the hate crime statute. There’s a lot of debate about this, because in the minds of some people, it’s pretty obvious what’s going on here, particularly in light of the wave of crime against and violence against Asian Americans in this country. Was this because of sex or gender, or was it because of national origin, or was it both? Do you think that the prosecutors have to choose?

Anne Milgram:

Right, I think that’s a very good question. I think that’s something where the prosecutors could charge both. The suspect here was clearly targeting women who worked in these massage parlors. There was also a couple that was killed, a husband and wife, who were present in one of the massage parlors at the time. There were three separate locations where the suspect killed two individuals. So, I think the way I would think about this is that if it’s provable based on gender, I would charge that. If it’s provable based on national origin, I would also charge that.

Anne Milgram:

So, I think this is an instance where it can be both and that it’s worth acknowledging it’s a question of prosecution if the evidence is there sufficient to charge both. Again, I do want to say this. It does appear very clearly targeted to women and to women of Asian descent. So, I think on its face, that is a really critical thing for an investigation to be focused on. We don’t know the facts completely yet. So, I think we have to be thoughtful about that, but yes, I think if there’s sufficient evidence of both, I would charge as both.

Preet Bharara:

People may remember that when law enforcement talked about the incident, there was a good bit of criticism of one of the officers who said, “Yeah, basically, the guy had a bad day. This is what he did,” and then also said that the defendant had a sexual addiction, had been a patron of two of those three spas. He was trying to remove the temptation. A couple of things, I think, are worthy of remarking upon with respect to that. One is experience is that you don’t take at face value everything that a defendant says in the moment after that person is arrested and has engaged in a mass murder. Motivations can be more complicated. Sometimes the facts speak for themselves and the targeting speaks for itself. Do you agree with that?

Anne Milgram:

I couldn’t agree more. I couldn’t agree more. I was surprised that the Sheriff’s Deputy came out and basically argued the defendant’s defense for him. I thought that they were very cautious in Boulder last night when they came out. Part of it might be that there was a very swift condemnation of the Sheriff’s Deputy for making statements that were… I mean the investigation is ongoing.

Anne Milgram:

So, I think that the statements made by the Sheriff’s Deputy were deeply problematic. To your point, I mean, that’s the suspect, who just murdered eight people and wounded nine persons. That’s the suspect’s statement. The investigation will figure out what the motive was and why. You and I both know this very well from having done a lot of cases. People who are arrested for committing horrific crimes don’t always tell the truth about what those motives were.

Preet Bharara:

So, we should also talk about the ongoing jury selection in the trial of Derek Chauvin, who’s the officer who killed George Floyd. You remember last week, we talked about this abrupt and sudden $27-million settlement that Minneapolis made with the family, the estate of George Floyd. You predicted correctly that that was going to be a big deal for the defense. They were going to argue for a delay of the trial and a change of venue, which the defense team did, but that was denied by the Judge.

Preet Bharara:

Essentially Judge Cahill, he said, “Unfortunately, I think the pre-trial publicity in this case will continue no matter how long we continue it.” Meaning, no matter how long we delay it. Then he said, “As far as change of venue, I do not think it will give the defendant any kind of a fair trial beyond what we’re doing here today. I don’t think that there’s any place in the State of Minnesota that has not been subjected to extreme amounts of publicity on this case.”

Preet Bharara:

So, essentially, the Judge looked like he was a little bit troubled by this news and how it might affect the proceedings and the views of potential jurors. But given the nature of the case and how big a deal the case was and how much publicity, changing the venue or delaying the trial wasn’t going to help him at all, which is the ruling that judges make.

Anne Milgram:

Do you think that’s the right call? I mean, it’s just an interesting decision. A lot of times, the rulings would be for these reasons, we believe that you can get a fair trial here. That wasn’t exactly the ruling. The ruling was… I mean, I don’t want to put words in his mouth. It was almost you can’t get a fair trial anywhere.

Preet Bharara:

You’re not going to get a more fair trial. Yes. It’s an inversion of the principle, right? Usually, as you say, you would expect the Judge to say, “We have an impressive voir dire here. We have extensive jury questionnaires. There’s going to be a lot of questioning, and you have a lot of peremptory challenges. You can get people off the jury for cause. We’ll be very careful about that. So, Mr. Chauvin will get a fair trial.” Instead, here it was, it was, as I said, an inversion of that and say, “You’re not going to get any more fair of a trial if we do these things you’re asking for,” which is more pessimistic way of saying the same thing.

Preet Bharara:

Anne, further to your point about the prejudicial nature of the $27-million settlement and whether it would have an effect on jurors and how you deal with that, in fact, what has happened in the last week is Judge Cahill called jurors back to ask them if they’d heard about the settlement without giving details. Two jurors were struck, because one of them said it might be hard to be impartial. So, they’re gone from the jury. So, consistent with his ruling and consistent with fair trial practice, two jurors who appeared not to be able to be fully impartial upon hearing the news are gone from the jury.

Anne Milgram:

So, Preet, one of the arguments that’s been made against the Judge’s ruling came from Alan Dershowitz, the former Harvard Law School professor.

Preet Bharara:

Alan Dershowitz.

Anne Milgram:

Yeah, he’s back. He thinks the judge is making “a serious constitutional mistake that the judge is focusing on the wrong issue, that judge is focused on the issue of prejudice. Will there be prejudice against Derek Chauvin? When what,” according to Dershowitz, “the judge should be focus on is that the jurors will be frightened that if they acquit or fail to convict on murder, there might be violence in the community.” What do you make of that?

Preet Bharara:

What I make generally of what Alan Dershowitz says is that he takes a contrarian position. Unlike some other analysts, he seems to always take the most extreme position on behalf of the defendant. He’s been a criminal defense lawyer for a long time and a professor for a long time. Whether it’s in defense of Donald Trump, in defense of Derek Chauvin or in defense of anybody else in his career, he seems to take the most extreme position in favor of that person. I don’t think it’s always well considered. Here, I think the Judge given the nature of the case ruled the correct way.

Anne Milgram:

I suspect also here that the judge gave jurors, because of the nature of this case, the opportunity. If they did have personal concerns or fears about serving in this trial, I am certain that the judge would have allowed them to express those and would have taken that into consideration as to whether or not he would have allowed lawyers to strike jurors for cause. Of course, also the lawyers can use peremptory challenges to eliminate anyone that they think would not be able to be fair and impartial sitting in the case. That’s really the legal standard.

Preet Bharara:

Though, there’s another ruling that people are talking about in connection with this case. The trial should be starting next week. So, as people know, it was in May of 2020 where Derek Chauvin put his knee in the back of George Floyd and killed him, but there was a prior incident involving George Floyd, an interaction with the police from a year earlier, from May of 2019. That was an instance where George Floyd looked like he took some substance and had a bad interaction with police.

Preet Bharara:

Judge Cahill ruled essentially that a portion of a body camera video from the 2019 arrest, from the year earlier that shows an officer approaching Floyd’s car and a photo of pills and the crack of the seat and comments Floyd made to a paramedic about what drugs he took, that’s admissible. Essentially, the judge’s ruling was that there’s medical evidence on what happens when Mr. Floyd is faced with virtually the same situation that he was faced with in May of 2020.

Preet Bharara:

So, after being confronted by police at gunpoint, he rapidly ingested some drugs. That’s an interesting ruling and will be one of the linchpins of Chauvin’s defense in the service of making the point that he didn’t cause the death. We started to talk about this a little bit last week. The death was caused by a combination of drugs and underlying conditions. The knee in the back didn’t actually act as a proximate cause of the death. So, a controversial ruling, helps the defense quite a bit.

Anne Milgram:

I think so. Just to step back for a minute on this, something that’s interesting about is that the Judge initially ruled that evidence of the 2019 stop could not come in. And then that defense had asked that there be a thorough search of the police car in which George Floyd was placed in May of 2020, that that’d be done. That was done in January of 2021.

Preet Bharara:

A long delay.

Anne Milgram:

A long delay. At that point, they recovered some narcotics. Some, it appeared to be, partially chewed or eaten narcotics. So, this raises some issues, because the medical examiner in Hennepin County has ruled George Floyd’s death a homicide of killing caused by a combination of the officer’s use of force, that would be Derek Chauvin’s knee on George Floyd’s back, the presence of fentanyl and methamphetamine in Floyd’s system and his underlying health conditions.

Anne Milgram:

So, to your point, the defense is going to say, “This was because of the narcotics in George Floyd’s system and because of his underlying health conditions.” They want to be able to argue, “This is what George Floyd did when he was stopped by the police. He tried to ingest all these drugs really quickly. He essentially caused himself to have this physical reaction.”

Anne Milgram:

Now, coming back to the judge’s ruling, I mean, first of all, he was very critical of the fact that the car wasn’t searched until January of 2021, which I think is a fair argument. It’s a little bit hard for me sitting here to understand that that car wasn’t searched immediately in May and in June. But what the judge basically is saying is that he thinks that the two arrests are “remarkably similar”, because it pertains to the cause of death in the 2020 incident. So, he’s going to allow them to make this argument like, “Look, this is exactly what George Floyd did before. So, he did it again here.” It is unusual to allow that kind of evidence about a victim.

Anne Milgram:

The one question I had for you is, “Is it there pretty strong argument that the prosecution can make here related to the 2019 incident?” Because the outcome of that was, if you credit George Floyd, if you’re going to accept and they may not want to accept this for a variety of strategic reasons, but if you say, “Okay, George Floyd, when he was stopped, took pills to try to destroy the evidence,” but look at in 2019, with the officers that responded, they took him to a hospital. He was released. He was never charged. He was alive as an outcome of that incident. I mean, can they flip this and make that argument?

Preet Bharara:

Yeah, I think so. Even if they don’t make the argument explicitly for some reason, the Judge doesn’t permit them to make the argument explicitly, jurors will understand, “Well, what’s the difference between the arrest in 2019 and the arrest in 2020?” In one, as you point out, George Floyd did fine, was taken to the hospital, was treated okay. On the other, he ended up dead. What’s the difference arguably? Derek Chauvin, him and knee in the back for nine minutes. I don’t know ultimately, at the end of the day, how helpful it is. It depends on how they argue it and it depends on what the jurors buy, but there’s a downside to that argument too, an inclusion of that evidence from 2019 also.

Preet Bharara:

So, Anne, the news surrounding the investigation and arrests and charges with respect to the January 6th Capitol insurrection keep swirling around. The acting US Attorney in DC, Michael Sherwin, who gave that press conference some days after the insurrection, talked about how complicated this task was, talked about how lots of people were going to be arrested. He went on 60 minutes this past Sunday. It appears from reporting that he didn’t have the permission of Main Justice Merrick Garland and others to make statements about the case. He’s no longer the acting US Attorney in DC. He’s returning to be an AUSA, an assistant US Attorney in Florida.

Preet Bharara:

But he made some jarring statements about the future of the case, including whether or not there will be seditious conspiracy charges, which there have not been yet, and including whether or not there might be criminal exposure for Donald Trump. There’s a fine line on how people talk about cases that are ongoing. There appears to be some criticism of Mr. Sherwin from within the Justice Department. The media has run with the narrative that the person who used to be in charge of this case must know a thing or two about what the evidence shows. It raises the specter of Donald Trump being charged. What do you think about the seditious conspiracy and Trump’s liability and Sherwin’s comments?

Anne Milgram:

Well, first of all, just starting on his comments, I was surprised by them. I think you and I both know. It is really unusual for someone in one of these positions to come out and talk about charges that haven’t been brought in any way. It’s worth noting for our listeners that when you hear people come out and talk about charges… It’s one of the reasons why I think the Boulder press conference last night didn’t give a lot of information. … is that up until the point that people are charged, investigations are confidential. So, the idea that you have over 300 people who’ve been charged with crimes related to the Capitol insurrection on January 6th, none of them have been charged with seditious conspiracy yet.

Anne Milgram:

So, for someone who was in a position of authority to come out and say, “I think the evidence is leaning in this direction,” that to me is something I would not have done. So, I think it would have been very different if he’d come out and said, “300 plus people have been charged with X, Y, Z crimes.” That’s a public fact. Those indictments are public. It feels different to me to talk about the inside workings of an investigation, particularly notable that it sounds like it wasn’t authorized or nor do I think it would have been authorized. I think if you said, “I want to speculate about what could potentially be charged,” the Main Justice folks would likely say no.

Anne Milgram:

The charge of seditious conspiracy, it’s 18 United States Code Section 2384. “If two or more persons in any State or Territory conspire to overthrow, put down, or to destroy by force the Government of the United States, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.”

Anne Milgram:

So, on its face, it looks like that’s a charge you would investigate. Again, it’s a conspiracy. So, it’s a group of folks working together to reach this goal, but that part of the investigation, I think, is something where we don’t know yet whether they have sufficient proof of all the elements that they would need to be able to bring that.

Anne Milgram:

Although, it’s worth noting, they have charged a number of folks that were members of White supremacist groups, right-wing militia groups, Oath Keepers. We can talk about this more in a couple minutes, but they have charged folks with conspiring to engage in some actions at the Capitol. I think, though, this is a very big question as to whether or not they charged seditious conspiracy. They have facts and evidence that that we haven’t seen, you and I haven’t seen. So, I want to pause on answering that question.

Preet Bharara:

So, here’s how I think about it. There’s a reason why it gets confusing to people, because the lay impression of the term sedition or seditious conspiracy sounds like some far reaching movie plot to overthrow the government in its entirety, right? But that’s not what the law says. As you read a second ago, among other things, if you use force to prevent, hinder, or delay the execution of any law, you can be guilty of seditious conspiracy. Let’s go back to what was happening on January 6th. Members of Congress were engaging in the execution of their duty, which I think can fairly be said to be the execution of a law, to count the electoral college votes.

Preet Bharara:

What was the intent of at least some subset of folks? It was to stop that vote. It was to stop the execution of a law, not just any law, but a fairly important one, that would finalize the results of an election and facilitate the peaceful transfer of power. Depending on what the facts are, it would seem to be that some folks were doing precisely that.

Preet Bharara:

There had been talks about the First Amendment. Of course, people who are protesting in a peaceful way, even if they’re using strong language, you have to worry to a significant degree about the First Amendment, but we’ve seen the videos. We saw the storming of the floor of the Senate. We saw the things that people were saying like, “Hang Mike Pence. Where’s Nancy?” These are people who are not just protesting, some of them, not just protesting or speaking. They were trying to stop the vote, because that’s what they were asked to do. That strikes me as falling within the ambit of that statute.

Anne Milgram:

I think it’s worth just noting something you said which is important, which is that what the government is going to try to do is look at there are, it’s been reported, hundreds of individuals who entered the Capitol. I just checked, 312 people have been charged, but the government stated publicly last week that they expect more than 100 additional individuals to be charged. So, you’ll end up with 400 plus criminal cases coming out of this.

Anne Milgram:

What the government will try to do is differentiate the individuals who entered the Capitol, didn’t show up that day, intending to enter the Capitol. They were part of that mob and should be held culpable for that. But they’ll try to differentiate that from the individuals who set out that day to do what happened here, to breach the Capitol. They were people who came armed. One example is that there are now 10 members of the Oath Keepers militia group that have now been charged. It’s been alleged that seven of those individuals were part of a tactical “stack of people” who dressed in combat gear, who pushed through the crowds to enter the Capitol.

Anne Milgram:

They had paramilitary gear. They used military style tactics. They kept hands on one another’s backs to communicate as they marched up the steps of the Capitol. They had coordinated before and during the attack using some apps. So, they’ve been charged with conspiracy, obstruction of an official proceeding, destruction of government property, entering restricted buildings or grounds. Two of the men are charged with tampering with documents or proceedings.

Anne Milgram:

So, it’s really important to note that I think a piece of why we haven’t seen seditious conspiracy charges and why we’re seeing it unfold as we do is the effort to really hold people accountable for the crimes that they committed and to make sure that they’re cautious about that.

Preet Bharara:

So, people have been waiting for days and weeks to see if anybody was going to be held accountable for the death of Officer Sicknick at the Capitol. So, finally, two men have been charged, not charged with murder. What do you make of those charges against those two gentlemen?

Anne Milgram:

So, this is interesting. There are two men, a man from Pennsylvania and a man from West Virginia that were each charged with conspiracy to injure a police officer, a federal officer, three counts of assault on a federal officer with a dangerous weapon, and other counts of obstructing or impeding an official proceeding, violence and so on.

Anne Milgram:

What’s really interesting about this is that there were three officers, Officer Sicknick and then there were two other officers who were with him at the time that these two defendants, they had cans of a chemical compound. It’s believed to be something like bear spray. The two officers who were also sprayed with this are witnesses. They basically have been able to cooperate with the government and to let folks understand what happened. There’s also video of this. The indictment contains pictures, which is a little bit unusual, but really show these two men there.

Anne Milgram:

On one of the videos, they can be heard talking about using the chemical compound something like bear spray and spraying it and can be seen spraying in the direction of Officer Sicknick and the two other officers. All of whom had to leave. They reported that it took them 20 minutes to get it out of their eyes, the chemical compound. One of the officers said that it was worse than the pepper spray she’d been exposed to during training.

Anne Milgram:

So, the way they charged it, because the cause of death of Officer Sicknick hasn’t been reported yet, they charged it as assaults on these three officers. Those are powerful charges. They carry long sentences. But more than that, at this moment, they’re not able, I think, to prove the causation of Officer Sicknick, because they don’t have that autopsy report being able to say that Officer Sicknick died in whole or in part because of that chemical compound, the bear spray. So, they’ve charged in a way that lets them have those two other officers testify as witnesses.

Anne Milgram:

So, I think they’ve done something that is thoughtful given the evidence that they have and what they can prove right now. I say that understanding that for Officer Sicknick’s family, it’s really hard, I’m sure, to make peace with someone not being held accountable yet for his death, but only being charged with assault. I’d be curious to know what your view of this is, but at this moment, based on the facts they have, it feels like a thoughtful choice that they’ve made.

Preet Bharara:

Look, I think it’s a work in progress. They are trying to get charges on the books for as many people as possible and as serious as possible and as is the case with the other folks who might ultimately be charged with seditious conspiracy to charges you could graduate as well. There’s a little bit of a theme in the show. Although this is a very, very different case from the trial of Derek Chauvin and the George Floyd killing, some of the same issues are at stake, right?

Preet Bharara:

One, causation, what was the actual cause of death? And then two, intent, what was the intent of the person? Was the intent to kill, or was the intent to just injure? It probably is the case that at least at this moment, a charge of murder is going to be hard to sustain, because both of the issue of causation and also intention on the part of the defendants.

Preet Bharara:

Sometimes you can have a lower intent crime that you can charge that’s quite serious, known as felony murder, which is a circumstance in which you’re committing an underlying felony. The death of the person or of a person in connection with that felony is foreseeable, at least, and you’re not acting carefully. If someone dies in connection with that felony, then you can be charged with certain kinds of murder, felony murder.

Preet Bharara:

The problem is that in every jurisdiction, including the federal jurisdiction, there are specified underlying felonies that qualify for the felony murder charge. In the federal system, for example, there are various things that qualify, including arson, kidnapping, treason, espionage, sabotage, child abuse, burglary, robbery, et cetera. But unclear whether or not any of the conduct that these rioters engaged with and the two individuals that are charged, if they engage in any of those underlying felonies.

Preet Bharara:

Rioting is not among the list. Inciting riots isn’t in the list. Seditious conspiracy isn’t on the list. There are words like treason and sabotage. I don’t think those likely qualify as a legal matter. So, I don’t know that there’ll be more serious charges, but it also may depend on what other evidence shows about their intent, whether one of these people flips and says, “Oh, yeah, we had a whole plan to do X, Y, and Z,” or if they had conversations afterwards, taking credit for the death of Officer Sicknick. I’m speculating about all this, but you never know what the evidence will turn up.

Anne Milgram:

Yeah, one point that’s worth making, Preet, is that the charges here and the potential sentence here would be significant, even as charged. So, on each of the assault of an officer, the potential incarceration sentence is up to 20 years. So, you’ve got three counts of those. Those could be run consecutively. So, that could lead to a much higher sentence. Again, it’s not an answer to how the case should be charged, but it’s just worth noting that they are charged today with very serious crimes and face potentially very significant sentences.

Preet Bharara:

So, as we’ve been speaking and recording, Anne, the news has broken that the shooter in the Boulder, Colorado case is 21, not yet identified, but he’s been charged with 10 counts of first degree murder in connection with what he did yesterday. So, we’ll keep monitoring that.

Anne Milgram:

Yes.

Preet Bharara:

So, Anne, we haven’t talked about Sidney Powell in a long time. Remember, she was supposed to release the kraken.

Anne Milgram:

Yeah.

Preet Bharara:

The election lawyer for Donald Trump, former federal prosecutor, who made insane accusations, engaged in insane conspiracy theories. She’s been sued for, I think, $1.3 billion by Dominion.

Anne Milgram:

For defamation, making false statements.

Preet Bharara:

For defamation. I mean, it’s hard to even recall now all the crazy things that she said. We should just end the show by pointing out what her defense is to defamation. Essentially, it boils down to, “Well, all that crazy stuff I was saying, it was all nonsense. Nobody could have taken it seriously anyway.”

Preet Bharara:

I mean, she says in her brief, this is her defense, “In light of all the circumstances surrounding the statements, their context, and the availability of the facts on which the statements were based, it was clear to reasonable people that Powell’s claims were her opinions and legal theories on a matter of utmost public concern. Those members of the public who were interested in the controversy were free to and did review that evidence and reached their own conclusions,” et cetera. That’s a dressed up way of saying-

Anne Milgram:

Everyone knew that they were lies.

Preet Bharara:

Everyone knew it was nonsense.

Anne Milgram:

Yes, I mean, it’s a remarkable defense. I’m sure there are examples and people can send them to us. I was trying to think yesterday of any other time I saw the defense of, “Essentially, Dominion is saying I lied. My defense is that well, everybody knew I was lying. Of course, it was made up.” She goes on. Part of it is they go on to say, that a reasonable people would not accept such statements as fact, but view them only as claims that await testing by the courts through the adversary process.

Anne Milgram:

So, she’s basically saying, “Because I said it in a legal brief and the court could figure out whether it was true or false, I get to say anything I want, basically. I’m allowed to make any allegation I want.” Of course, that’s not the legal standard. But it is a bit shocking to me that her lawyers have clearly been looking at this lawsuit, which on its face is a very serious lawsuit against her. Their defense is, “Well, everybody should have known that this was outlandish, right?” Her defense team actually argues the fact that Dominion is saying that this was outlandish is further proof that no one should have believed it.

Preet Bharara:

Yeah, separate from the legal matter, from the defamation case, it’s really angering, because this was not a nickel and dime case. What was at stake here was the peaceful transfer of power and the integrity of the election. So, even though it’s only Dominion suing her for defamation, tens of millions of people in this country took what she said seriously. You can argue about whether or not they’re reasonable people. Tons of Trump supporters put their faith and trust in Sidney Powell, who now basically says that everything she was saying was BS and she shouldn’t be held accountable. She helped to ruin the country.

Preet Bharara:

Look, I think she bears some responsibility for 1/6, the insurrection. It’s very easy and facile but really frustrating and irritating and angering for her to take this legal position now weeks later when she’s trying to save her own behind, but in the moment, she said these things with great conviction over and over and over again, not just in court, but on Fox News and at rallies and at the side of Rudy Giuliani and others. She should be ashamed of herself. I do think there should be some consideration paid, otherwise sanctioning her as a member of the Bar.

Anne Milgram:

Well, it’s really interesting too. I’ll be really fascinated to continue to follow the defamation suit and to see how the court responds to her defense. To be continued.

Preet Bharara:

To be continued. So, we’ll be back next Tuesday. The trial of Derek Chauvin will have begun by the time we speak next weekend. Keep sending us your questions to [email protected]

Anne Milgram:

We’ll do our best to answer them. Take care, Preet.

Preet Bharara:

See you, Anne.

Preet Bharara:

That’s it for this week’s CAFE Insider Podcast. Your hosts are Preet Bharara and Anne Milgram. The executive producer is Tamara Sepper. The senior producer is Adam Waller. The technical director is David Tatasciore. The CAFE team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Noa Azulai, Nat Weiner, Jake Kaplan, Jennifer Korn, Geoff Isenman, Chris Boylan, Sean Walsh, and Margo Maley. Our music is by Andrew Dawson. Thank you for being a part of the CAFE Insider community.