• Show Notes
  • Transcript

In this episode of the CAFE Insider podcast, Preet and Joyce break down the latest Supreme Court decisions concerning the Affordable Care Act and LGBTQ rights. They also discuss Derek Chauvin’s upcoming sentencing, and the Department of Justice’s reversal of Trump-era immigration policies.

We hope you’re finding CAFE Insider informative. Email us at letters@cafe.com with your suggestions and questions for Preet and Joyce.

This podcast is brought to you by CAFE Studios and Vox Media Podcast Network.

Tamara Sepper – Executive Producer; Adam Waller – Senior Editorial Producer; Nathaniel Weiner – Audio Producer; Jake Kaplan – Editorial Producer

REFERENCES & SUPPLEMENTAL MATERIALS

Preet Bharara tweet, 6/20/21

Pre-order Hatchet Man: How Bill Barr Broke the Prosecutor’s Code and Corrupted the Justice Department by Elie Honig

AFFORDABLE CARE ACT

Article III, Section 2 of the U.S. Constitution

California v. Texas, U.S. Supreme Court, opinion, 6/17/21

National Federation of Independent Business v. Sebelius, U.S. Supreme Court, opinion, 6/28/12

“Standing,” Cornell Legal Information Institute

“Court again leaves Affordable Care Act in place,” SCOTUSblog, 6/17/21

“The ‘judicial torpedo’ that wasn’t? What Amy Coney Barrett’s Obamacare vote tells us.” WaPo, 6/17/21

LGBTQ RIGHTS

First Amendment to the U.S. Constitution

Fulton v. Philadelphia, U.S. Supreme Court, opinion, 6/17/21

Employment Division v. Smith, U.S. Supreme Court, opinion, 4/17/1990

“Strict Scrutiny,” Cornell Legal Information Institute

“Court holds that city’s refusal to make referrals to faith-based agency violates Constitution,” SCOTUSblog, 6/17/21

DEREK CHAUVIN

Fifth Amendment to the U.S. Constitution

Minnesota v. Derek Chauvin, Hennepin County District Court, State’s sentencing memorandum, 6/2/21

Minnesota v. Derek Chauvin, Hennepin County District Court, Defendant’s sentencing memorandum, 6/2/21

Minnesota v. Derek Chauvin, Hennepin County District Court, Verdict and findings of fact regarding aggravated sentencing factors, 5/11/21

Minnesota Sentencing Guidelines and Commentary, 8/1/20

“Allocution,” Cornell Legal Information Institute

ASYLUM

“Impact of Attorney General decisions in Matter of L-E-A- and Matter of A-B-,” DOJ memorandum for the Civil Division, Associate Attorney General Vanita Gupta, 6/16/21

“U.S. Ends Trump Policy Limiting Asylum for Gang and Domestic Violence Survivors,” NYT, 6/16/21

Preet Bharara:

From CAFE and the Vox Media Podcast Network, welcome to CAFE Insider. I’m Preet Bharara.

Joyce Vance:

And I’m Joyce Vance.

Preet Bharara:

Hi Joyce Vance.

Joyce Vance:

Hi Preet. How are you?

Preet Bharara:

I’m good. Happy Father’s Day.

Joyce Vance:

You too. I loved the picture of you as a tiny baby in your dad’s arms. It was such a great picture.

Preet Bharara:

I was a week old, a week old in India. My dad … I didn’t even appreciate this until Sunday. It’s the first picture ever taken of me, and I don’t know if you have pictures like this, but there was not really a lot of availability of color film, so all those pictures of me as a baby were taken in black and white, and then somebody just colorized them through some process that I don’t understand, so that was kind of nice.

Joyce Vance:

Wow. It was a gorgeous picture. I loved how your dad was totally dressed up and he’s looking at you with this look like, “Damn, you are going to be trouble.”

Preet Bharara:

Yeah. I saw you tweeted that. Thanks. Thanks, Joyce.

Joyce Vance:

You’re welcome.

Preet Bharara:

Another big thing happened last week. Unfortunately, you were down south and couldn’t make it. We had the book party for our friend and colleague, Elie Honig, his forthcoming book, Hatchet Man. That was fun. That’s the first time I was at a social gathering indoors with people not wearing masks.

Joyce Vance:

I was so jealous. I did radio with him yesterday. He did the Laura Coates Show on Sirius and we were on together and it sounded like y’all had so much fun without me.

Preet Bharara:

Not because we were without you. We would have had more fun if you had been there.

Joyce Vance:

Okay, I want a rain check.

Preet Bharara:

It was really fun. And Elie’s going to be on the Stay Tuned Podcast to talk about his book after the holiday. So we should talk about some stuff.

Joyce Vance:

This is sort of a big brain week, right? I was trying to think what week I’ve read so many opinions.

Preet Bharara:

You’re going to be carrying this one this week.

Joyce Vance:

No.

Preet Bharara:

It’s Supreme Court season.

Joyce Vance:

It is, and they leave all the big ones to the end, so we’re right in that point in time where we’re going to get major decision after major decision.

Preet Bharara:

Yeah. The first one we should talk about is the Affordable Care Act case, as everyone refers to it, the ACA case. Formal caption, California v Texas. And maybe we should remind people the background, and I’ll spit it out and Joyce will correct me when I make errors.

Joyce Vance:

Okay.

Preet Bharara:

The Affordable Care Act was a healthcare act passed when Barack Obama was president. Many Republicans do not like it and they had been trying to gut it for a long time. They tried at one point to say the mandate and the penalty relating to the mandate rendered it unconstitutional, and you can’t do that.

Preet Bharara:

That went all the way up to the Supreme court. The Supreme court held a few years ago that you can do that because Congress has the power of taxation, and in effect, the penalty, up to about $695 for not obeying the mandate, was a taxing power by Congress, so no luck. The ACA stands.

Preet Bharara:

Then, Congress went back and basically got rid of the penalty from 695 to zero not the penalty, and then cases were brought including the one we’re talking about now, where the suggestion is, well, Congress can no longer justify the passage of the ACA under its taxing authority because there’s no more penalty, so we zeroed it out, and now what is the authority to do that?

Preet Bharara:

And the Supreme Court gave it the basic holding, did not decide necessarily on the merits, but on this issue that we’ve talked about on the show before … people may remember … standing. Do the individuals in the states who brought suit have standing to argue that the ACA should be thrown out or that it’s unconstitutional in any particular way?

Preet Bharara:

And then just quickly, what does standing mean? Well, the Supreme Court has said a plaintiff must have suffered an injury, in fact, right, an injury that’s legally protected interest, that’s particularized and concrete. There must be a causal connection between the injury and the conduct, and it has to be likely rather than speculative, and basically the court said, “Hey, there’s no injury. There’s no harm because there’s no penalty anymore.” Does that make sense or is that circular logic?

Joyce Vance:

It is a little bit circular. You try to trace that one down and figure if anybody could have ever won this case, and the answer is no, nobody could have won on that theory.

Preet Bharara:

Let’s talk about the split. This was not a close case.

Joyce Vance:

No, it wasn’t, seven two, and it’s Bryer’s opinion. And the people who line up with him, it’s relatively interesting. It’s Roberts, Thomas, Sotomayor, Kagan, Kavanaugh, and Barrett, and then Alito and Gorsuch are all by themselves in descent, so that’s not the usual lineup that we expect to see.

Preet Bharara:

Wait a minute. Joyce, did you say Amy Coney Barrett voted with the majority-

Joyce Vance:

I did.

Preet Bharara:

… to uphold the ACA or at least not to reject the ACA? Now, isn’t it the case that you and I, and lots and lots of other people, back during her confirmation process said, and senators as well on the democratic side, said she was a guaranteed vote the other way on this case?

Joyce Vance:

I feel certain that at some point I would have said that she would gut the ACA, and so I was wrong.

Preet Bharara:

Were you just reading the talking points from the Democratic National Committee, Joyce?

Joyce Vance:

It really wasn’t. I was actually looking at some stuff that she had written previously, and it was clear that she had a lot of animosity not in the personal sense, but in the legal sense towards Obamacare. And I felt certain that the democratic party’s talking points were in this case correct.

Preet Bharara:

Yeah. Look, I mean, I’m kidding obviously, but I’ve been talking for the last few days about this. Look, there was a considered effort. And I think in my case, it was good faith, but I was wrong, prediction that Amy Coney Barrett was going to go the other way. And in part that was based on a criticism she lodged against Chief Justice Roberts on the prior case in the Supreme Court relating to the ACA that we talked about and shows a couple of things, I think, and it’s good to admit error and think about how you analyze things, so maybe you analyze them better in the future.

Preet Bharara:

One is that there was a lot of anger. I felt it myself about even the nomination of Amy Coney Barrett on the eve of an election when Merrick Garland was denied a hearing and a vote much, much earlier in the election cycle some years before, and there was this view that Justice Ginsburg was a huge loss to the liberal side and to the court and to the country generally, and Amy Coney Barrett had no business being put forward and voted on in that timeframe, and so every argument in favor of rejecting her nomination was made and maybe was made more stridently than the facts warranted.

Preet Bharara:

And then the other thing is people get caught up, and tell me what you think about this, the nature of the case, what the case is about. The case about the ACA. And you said a moment ago, and I echo this, that she and others have shown hostility to the act, but the case here does not turn on whether or not the act is liked or not liked or efficacious policy or not. It ended up turning on a fairly narrow legal point and sometimes justices, whatever their hostility to something is, will actually stick to the legal points, right?

Joyce Vance:

I think that’s right. Just this very narrow point has nothing to do with the substance of whether the Affordable Care Act is constitutional. I will confess, Preet, that there’s probably a very small petty part of me that wonders if she looked at the vote on this case and thought, “Well, if I vote against Obamacare, it’ll still be six three without me, so maybe I’ll mess with the people who criticized me,” but I don’t think that that’s really it. I think that’s petty on my part and it’s far more likely that it’s the technical legal arguments here that she went for. But do you know who else got this wrong when it came to Amy Coney Barrett? Do you remember who else got it wrong?

Preet Bharara:

I feel like you put me on the spot now.

Joyce Vance:

I did sort of put you on the spot. It was President Trump, who at the time-

Preet Bharara:

Oh yes, no, you’re absolutely right. Look, yes, yes, no, go ahead, and then I have a comment.

Joyce Vance:

He at that point in time said, “If I win the presidency, my judicial appointments will do the right thing, unlike Bush’s appointee Roberts on Obamacare.” He tweeted that before he was elected and he was on record as saying that he would only put justices on the court who passed his litmus test, but she sort of flunked it here.

Preet Bharara:

Yeah. In defense of ourselves, you’re right. You’re very smart. I had forgotten about that. When the president who’s nominating the judge himself is telegraphing, signaling, advising that his nominee is going to do the right thing, and in particular, the ACA case, you’re hard pressed if you’re on the other side of the debate to not take that statement at face value. And that’s another reason in addition to the others why people were predicting doom on this ACA case. I guess that’s right.

Preet Bharara:

You pointed out before the interesting nature of the votes and how they were spread on this case. Ordinarily when you hear a case of seven two and the quote unquote “progressive” side wins, it’s a good bet if you’re taking a multiple choice quiz that the dissenters are Alito and Thomas. In the old days, maybe it would have been six three, Alito, Thomas and Scalia, but here the dissenters were Alito and Gorsuch. Thomas concurred with the majority, but on an interesting point, right?

Joyce Vance:

I love what he said. In his opinion, he says, “Although this court has erred twice before in cases involving the Affordable Care Act, it does not err today.” But he makes this very narrow point, at least in part, because Alito is relying pretty heavily on the fact that the states have standing because the Affordable Care Act imposes costly obligations on them, other costs that are associated with the act beyond the penalty for the mandate that’s now deceased. And Thomas just says, “Look, the states didn’t make these arguments in the lower court.” And of course, if you don’t make arguments in the lower courts and preserve them for appeal, then you can’t make them, especially when you get to the Supreme Court. So Thomas too has a hyper-technical read of why in this case there should be a loss for the opponents of the Affordable Care Act.

Preet Bharara:

Yeah. And just to amplify what you were saying a second ago, as we were discussing standing, this idea that in order to bring a suit against something, you have to have been harmed in a particular way and show that the government action caused the harm. Otherwise, anybody could sue anybody for anything, so it’s an important legal concept. And Alito tries to save the day, as you mentioned … I just want to quote from the opinion … by saying, “Well, there were costs, there were harms, even though the penalty on the mandate was zeroed out,” and he says … He’s talking about the plaintiff’s quote … “offered plenty of evidence that they incurred substantial expenses in order to comply with obligations imposed by the ACA.” And he also reasoned if they were to prevail, they wouldn’t have to pay those expenses and so that’s harm. And Thomas disagrees, as you said, with his colleagues, saying, “Well, you’re making that argument, but the plaintiffs didn’t make that argument, so out of luck.”

Joyce Vance:

One of my favorite parts of oral argument in the Supreme Court is you realize at some point that the justices aren’t really as engaged with the lawyers as they are with each other and they bat these sort of issues back and forth amongst themselves. It’s interesting to see Thomas take this legally procedurally principled stand.

Preet Bharara:

We should maybe also explain to the non-lawyers out there the caption. Why is it California v Texas? Why isn’t it United States v Texas? What is California doing in this case at all?

Joyce Vance:

It’s such a good question. This happens no matter whether the president is a democrat or republican, but in this case, the state of California didn’t believe that the Trump administration would defend the Affordable Care Act in this case, so they asked the court for permission to intervene, in essence to substitute themselves for the United States and become the party that would defend the Affordable Care Act.

Joyce Vance:

I have this same experience in an Alabama case where I was local counsel for the New York Attorney General and some other parties. And in that case, the census count was challenged by the state of Alabama and by Alabama Congressman Mo Brooks, who’s been in the news a little bit over January 6th. They did not want the Commerce Department to include people who were not citizens in the census count, so they sued. Believing that the Trump administration would not defend the constitutional read of the census, which requires that all people be counted, we intervened. We asked the court for permission to defend the constitutional, the textual reading of the requirements for the census and the court permitted us to intervene much to the chagrin of the justice department at the time. And so this is this process where when an administration fails to adequately defend to the taste of one or more parties an existing statute, they are permitted to substitute in by leave of court.

Preet Bharara:

Joyce, as you and I were discussing before we started taping, now that the standing argument has become front and center and these individuals and these states cannot, according to a majority of the court, allege a particularized harm or injury and therefore lack standing, are we done with effective challenges to the ACA, because who could have standing now?

Joyce Vance:

I think at least as far as the mandate goes, we’re done with successful challenges. But look, Obamacare has become not just a great hated law. It’s also become a fundraising opportunity for republicans, so I expect we’ll see other challenges. Whether they’ll be anything beyond frivolous, I think that’s unlikely.

Preet Bharara:

Can I ask this question? I’m going to spring this on you. In light of our earlier conversation about how we were wrong about the ACA and how Amy Coney Barrett would vote and we’ve described the reasons why in good faith, we were incorrect … it happens … do you want to amend any of your other predictions about the court up to and including Roe v wade?

Joyce Vance:

I always caveat my predictions by saying that my crystal ball isn’t very good, but I’ll just say I’m deeply concerned about Roe vs. Wade always less because of an outright reversal, which I think is tough to do given the law on reversing precedent. My concern is about eroding it to the point where it no longer has any force, so that’s the prediction I’ll stand by.

Preet Bharara:

Yeah, that’s fair. I think that’s fair, but I think everyone needs to be careful when they make predictions about the Supreme Court, on the basis on which they will rule and what the divisions will be, although there’s a decent amount of predictability and we’ll see what happens in some of these other cases. Do you want to talk about another case?

Joyce Vance:

I do. There’s so many to choose from.

Preet Bharara:

This is a case … Maybe you can describe it, Joyce … Fulton v Philadelphia, that came down last week as well, and that pitted LGBTQ rights against religious freedom, the case in which the city of Philadelphia refused to contract with a Catholic foster agency that would not allow same-sex parents to be foster parents. How’d that turn out?

Joyce Vance:

This is a nine zero decision. It’s a very interesting decision. There’s a lot to talk about here, but first I’m going to go back to basics and just remind folks that the first amendment has five guarantees. It guarantees us the right of free speech, free religion. It guarantees a free press, the right of assembly and the right to petition the government, so that’s our pop quiz material.

Preet Bharara:

You’ve already done better than Amy Coney Barrett did at her confirmation hearing when she could only name four of the five, which that was a little bit of a gotcha question, but I’m very proud of you, Joyce.

Joyce Vance:

Without being critical, I think it’s always important to remember all five, and I mourn the demise of the Newseum in DC, where I learned everything I know about the first amendment. It was a wonderful museum. But that said, Fulton. There were two issues in Fulton. And the first one was whether or not Philadelphia violated free exercise. Free exercise is, of course, that foundational first amendment right that guarantees you the right of free exercise of religion. It’s been a hot button issue in the Supreme Court the last couple of terms. And here the court decides that when Philadelphia refused to contract with CSS, that it was violating the free exercise clause of the first amendment. There are concurrences by different justices, but that’s the bottom line holding.

Joyce Vance:

And they then go on to decide a second issue, and this becomes what this case is really about because the second issue was whether or not the court should reverse a case called Employment Division versus Smith. This is a case where you have to suss out the majority by reading the concurrences. And ultimately it’s six three. Justice Thomas, Justice Alito and Justice Gorsuch would have liked to have reversed employment division, and that’s the real issue in this case. The issue is about the standard that you use in deciding whether or not something violates the free exercise clause.

Joyce Vance:

I think in many ways, this is a tough case because the real object here was to reverse employment division and make it much easier for parties like CSS here, Catholic Social Services, that really want to get out from under the specter of being called discriminators to make it easier for them to assert their religious rights in order to, in essence, exclude gay parents from their services.

Joyce Vance:

And this comes down to what standard you use. We have our good friends at the Strict Scrutiny Podcast focused on that as one of the three levels of review that the court uses when it evaluates the constitutionality of a state law. But here the court decides that it will retain the standard that’s been used by the court since it handled down to the decision in employment division.

Joyce Vance:

And really the problem is that this was not the right case to reverse that policy. And it’s Justice Barrett who makes the argument. She says, “It might be nice” … she sort of speculates … “to reverse it, but we don’t really know what the new remedy would look like. What would we do? How would it work if we didn’t have that?” It becomes clear that the court is going to rule on this very narrow ground in Fulton and say, “No, parties, you have to go back and Philadelphia, you’re going to have to follow a new procedure if you want to exclude CSS,” and maybe there’s a route for them to do this. There’s some suggestion that they could eliminate all of the exceptions that they have in their policy and that that might be a vehicle for continuing to do this, but essentially there are a lot of questions still floating around after this opinion and that’s one of the reasons that at least in some of the concurrences, there’s a little bit of discomfort with it.

Preet Bharara:

Yeah. I mean, not to oversimplify it too much, but basically what Smith said is, that earlier case you’re talking about that they were debating revisiting, if a policy or a practice or a law is generally applicable, meaning it applies to everyone, not with any specific intent to discriminate against anyone, if it’s generally applicable, then generally speaking, it will be permitted. The problem here is this bar, the Philadelphia policy, had a whole raft of exceptions. And so for that reason … tell me if you agree … it was deemed not to be generally applicable, hence the violation. And as one of the justices pointed out … I forget who … I guess Philadelphia could be back at the game by just eliminating the exceptions and then maybe you would have a different result in the court.

Joyce Vance:

I think that’s right. And I think you point out the risk in this case is trying to oversimplify it. It’s not really a case that’s susceptible of oversimplification, but I’ll just say that Barrett really does put down a marker in this case for reversing Smith in the future. That’s my biggest takeaway that Employment Division versus Smith is really at great risk if the right case appears in front of the court.

Preet Bharara:

This is another example of what we were talking about before. I think there was a lot of expectation and prediction here, not on the part of a lot of people, but on the part of some, that this court would actually revisit and overturn the earlier case. And that did not happen. And the signals for that is, as you pointed out a minute ago, the free exercise provision of the first amendment has been a hot button issue for the last couple of terms on this conflict between free exercise and discrimination, and there was a cake case, and there’ve been other cases, but once again, the prediction that people made that this case would go farther than it did turned out to be wrong.

Joyce Vance:

That’s right. And it’s really fascinating that this case turns out to be nine zero and there’s appeal, frankly, for both sides. There’s appeal for the liberal justices because at least this decision is narrow and it doesn’t do damage to long-term precedent, and it’s clear that the conservative justices were always going to do whatever they could do to rule for Catholic Social Services in this case, so it’s a pretty fascinating magic trick. Justice Alito in his concurrence actually criticizes the opinion and says that they should have gone further and talks about the opinion being written on the disappearing paper that’s sold in magic shops. But the magic trick here is really the chief justice who conjures a nine zero majority for this opinion.

Preet Bharara:

One of the things that is happening this week … That’s it for the Supreme Court Roundup for this Tuesday, but the long-awaited sentencing of former police officer, Derek Chauvin, who killed George Floyd, is coming up this Friday, June 25th. And you and I have talked about this before and others have talked about it, and there’s been a flurry of briefing on the issue of what the sentence should be, and I think you and I both predict a substantial sentence, maybe not what the government is asking for. They’re asking for 30 years in this case, and we’ve talked about some of the factors before.

Preet Bharara:

The judge has already made a finding with respect to various aggravating factors, including that the defendant abused a position of trust and authority … That’s Chauvin … That Chauvin treated George Floyd with particular cruelty. There are many examples of that if you remember the trial. Third, that children were present during the commission of the offense. You remember that as well. And fourth, that the defendant committed the crime as a group with the active participation of other persons, in this case, three other officers who have yet to go on trial.

Preet Bharara:

I think there’s a lot of speculation as we’ve been talking about speculation in this program a number of times, and so I would suggest we exercise some caution in making a prediction, but without even looking at the particular factors and the particular guidelines, which we can go into and unpack if you want, people I’ve talked to, I think I’ve said this on the show before, sometimes you get a feel for what you think an appropriate sentence would be that is often corroborated by sentencing guidelines, whether federal or state, just because you have a sense of where this case falls on the spectrum. And so it seems unlikely, and then I want to know what you think, for this defendant, Derek Chauvin, to get a light sentence, even though his lawyer has asked for probation.

Joyce Vance:

Time served, right?

Preet Bharara:

Time served, which just … That ain’t happening. There’s no way that’s happening, but the sentence around 20 years won’t satisfy everyone. Some may think that’s low. Some may think that’s high, but it seems substantial in kind of the ballpark we’re talking about here. What do you think?

Joyce Vance:

I think that that’s right, and I wonder what you think about the strategic decision that the defense lawyer made to ask for time served, which is just a laughable sentence, given this crime and given the fact that the judge found that there are four aggravating factors. And he in essence says, “Look, Chauvin didn’t intend to kill George Floyd. He was just doing his job.”

Joyce Vance:

I wonder if a better strategy wouldn’t have been to come in and to say, “While my client has been convicted of murder, it’s important to point out that he was not charged with premeditated murder or with intentional murder and whatever you think of him, this is actually an unintentional murder, a felony murder, or a depraved heart murder.”

Preet Bharara:

That’s what he was convicted of.

Joyce Vance:

I just don’t know why they don’t come in and make the credible argument. I’ve seen people saying, “Well, they’re bargaining.” They’re asking for the lowest possible sentence. Prosecutors are asking for a very high sentence. The hope is that the judge who has a reputation for being a moderate sentencer will meet them somewhere in the middle. But I wonder if you, like me, Think that the defense made a mistake in this case by not coming in with a more credible argument.

Preet Bharara:

Yeah. I don’t know if it was a mistake. Maybe they think they’re hos no matter what and this analogy that some people have been making that you alluded to of this being like a negotiation where you have the opening gambit at the one end of the spectrum and the prosecutors at the other end of the spectrum. There’s no back and forth. There’s no negotiation with the judge. The judge is in all likelihood going to come into the courtroom on Friday knowing what the sentence will be, will listen to the arguments, will listen to see if there’s something new.

Preet Bharara:

And I know I’ve talked to a million judges in my day. Most of them have some very clear sense of what the sentence will be having read the submissions, having presided over the trial, having read the pre-sentence report and everything else. Their minds can be changed. They can be moved by the statements of victims in one direction or the statement of the defendant and another direction. That happens because it’s a difficult decision to make, but the judge will have a clear view. There’s not going to be an opportunity to haggle over the sentence in the courtroom, so that negotiation analogy falls flat.

Preet Bharara:

I mean, that does happen in negotiations between defense lawyers and prosecutors, so if they’d had a good faith negotiation, yeah, maybe the defense lawyer says, “No, you should recommend probation,” and the prosecutors laugh at him and say, “No, we’re going to recommend life,” and then they go back and forth and they settle on something. Of course, I’m talking about before going to trial. I’m talking about in the context of a plea agreement or negotiation.

Preet Bharara:

But credibility is incredibly important, right? I have most of my life thought about it from the perspective of prosecutors and making sure that prosecutors are making credible advocacy arguments for ranges of sentences that are within the realm of possibility. And you lose credibility if you go outside the range and you’re asking for too much, and I suppose the same principle applies to defense lawyers as well and this defense lawyer. It may be that he thought, “As soon as I suggest some term of years, what would that term of years be?” It might’ve been too much to bear for Derek Chauvin and maybe he was giving too much … I mean, I’m just speculating about this because I do agree with you. Sometimes it’s hard for defense counsel to take anything other than the most minimal position, but yeah, it’s not a credible request.

Joyce Vance:

Sometimes prosecutors get angry at defense lawyers because of positions that they take. And I was never one of those prosecutors. I was very comfortable with the idea that I had one job and that the job the defense lawyers had was to get their client off at any cost. They obviously still had a duty of candor to the court, but really that they could engage in tactics and strategies that as a prosecutor, I couldn’t engage in. That never troubled me.

Joyce Vance:

But here, I think there’s a line that prosecutors are using when they argue that it’s really important. They say that what Derek Chauvin did shocked the conscience of America. And I don’t want to belabor the point here, but I think that his lawyer should have found some way to suggest to the court that it was possible to sentence his client in a way that would still achieve a measure of restorative justice. I’m big on restorative justice right now, because it’s part of the summer research and writing that I’m doing, but here it’s a very real thing, this notion that the country has to have closure, not just the family of George Floyd, who also needs to have their interests represented somehow in the sentence that the court imposes. I just feel like no matter the reasoning, the defense lawyer did his client a big disservice here.

Preet Bharara:

Can I tell a quick story on this point? It was I think within six months of my becoming a prosecutor, I was in magistrates’ court and there was an arrest of a person on a felony possession charge. He had prior felony conviction, was in possession of a firearm. In fact, was arrested after he shot the firearm on the streets of New York. And the question is bail before the magistrate judge, and this particular defendant had a prior record. I think there were outstanding bench warrants. He was actually shooting the gun, which is what caused the police to show up. He was in possession of the gun. He was not a good candidate for bail. He was both a danger to the community and a risk of flight.

Preet Bharara:

And obviously, I took that position that we requested the defendant be remanded pending trial, and the defense lawyer got up, and she’s a good lawyer from federal defender service, and she basically asked the court to release the defendant on his own recognizance. And I’ll never forget, and it was a good early lesson, the judge looks at her and looks at the defendant and says very sternly, “I’m sure it’s the case that you’re making this argument because your client is insisting.” And she was a young lawyer as well, fairly recent, like I was. And the judge says, “At some point you need to consider your credibility with the court.” And that’s all he said, and he denied the motion for bail, but I’m just reminded of that story when you talk about this lawyer in this case, that all sides, prosecutors and defense lawyers, even though you may not like to concede some things, credibility is incredibly important.

Joyce Vance:

It really is. Speaking of credibility, something that we should probably remind our listeners about is how they will perceive this sentence when it’s handed down, because the rule in Minnesota, and this is true in a lot of places … Alabama’s one of these jurisdictions … Chauvin will only serve two thirds of this sentence in prison. He’ll serve the last third on parole, so whatever is imposed, only two thirds of that is time in custody.

Preet Bharara:

Yeah. I mean, just one last point. Part of the issue for Chauvin and his lawyer is not just that he’s asking for a very, very low sentence that is unlikely to be imposed, but also some of the arguments he makes in his brief some may find detached from reality and a little bit offensive. And he says, quote, “Here, Mr. Chauvin was unaware that he was even committing a crime. In fact, in his mind, he was simply performing his lawful duty assisting other officers in the arrest of George Floyd.” He talks about Chauvin being the product of a broken system. When most people think of him as being the image of the broken system, he’s what’s broken, not that he’s a product of a broken system, and so some of that language may not land well with the judge.

Joyce Vance:

Pretty incredible. Preet, defendants at sentencing have something called the right of allocution, the right to make a statement to the court and talk about their conduct. Do you think Chauvin will allocute in this case?

Preet Bharara:

That’s a great question. I find that defendants who can show some remorse and show some humanity, even if they’ve not testified because of their fifth amendment privilege at trial, that they can do themselves some good. Something about Chauvin, and I’ve really not heard him speak … He didn’t say anything in court, obviously … combined with what the defense lawyer is saying about the lack of culpability, I’m not sure that Chauvin can say something that the judge wants to hear. It does not behoove a convicted defendant in the allocution, one the most sober moments of any courtroom proceeding, to proclaim innocence. He’s been rendered guilty. The verdict has been issued unanimously on multiple counts by a jury of his peers. I don’t know what he can say that’s going to help him because he sees himself as a victim and his lawyer has sort of presented him as a victim of a system, as opposed to a perpetrator in a system that resulted in the death of a black man. What do you think?

Joyce Vance:

I agree with you. Unless Chauvin has suddenly grown some remorse, allocution could really boomerang on him. It does go back, though, to strategic choices that defense lawyers make. Chauvin was never really presented to us as a good cop. And one of the issues that will, I think, limit what the defense can do here at sentencing is they can’t portray him as a good law-abiding citizen because he’s now under investigation for tax fraud as well. Apparently he took some pretty significant steps to dodge his obligations to pay taxes. It’s going to be really interesting to watch this decision, and if he does allocute, to see what it is that he’s going to say, that will change the judge’s mind. I just don’t see where he can go. But like you say, prediction is a dangerous endeavor.

Preet Bharara:

One last thing we should mention, maybe, Joyce with respect to the justice department, there has been a lot of debate about whether or not the justice department is doing the right thing, headed by Merrick Garland now, in either persisting in policies or positions of the Trump administration or reversing them. Some have been reversed. Some they’re persisting in, and that continues to be a debate that you and I discuss week to week. There’s one policy in particular in the past week that the justice department has reversed and changed course from the Trump administration and that is with respect to the policy on asylum.

Preet Bharara:

People may know, folks come from other countries to escape various things and Congress has authorized grants of asylum in certain circumstances. They include grants of asylum can be given to people who have a good faith and well-founded fear of persecution on account of various attributes, their race, religion, nationality, political opinion, or, and this is critical in the current reversing of course, membership in a particular social group.

Preet Bharara:

And under the Trump administration, DOJ issued a directive and overturned various decisions within the department that disallowed people who were having domestic abuse issues and fears, or thought that they might suffer violence at the hands of gangs in their native countries, they didn’t qualify. Jeff Sessions thought that was too much. That was too kind. That was too generous. And so those folks, their asylum petitions were essentially denied on that basis. They’ve changed that. Good thing, Joyce?

Joyce Vance:

Oh, it’s such a good thing. This I think is something that was very important because the position that DOJ took under Jeff Sessions arguably violates international law on asylum. It certainly violates common sense and decency because to put a face on it, the people that this meant were unable to seek asylum were women in Central American countries like Guatemala, where the government did little or nothing about domestic violence, so a woman who is being subjected repeatedly and over a long-term to violence, sexual violence and physical violence, was unable to apply for asylum. And of course, in countries where there are systemic problems with people who won’t cave to pressure imposed by gangs and then are threatened with gang violence, often to their children, those people also became ineligible to seek asylum. This decision so early in Merritt Garland’s tenure is something that should all make us feel good about being Americans.

Preet Bharara:

Ordinarily I say, Joyce, I will see you next week, but first of all, I never see you. I just hear your voice, but I will not hear your voice next week because I will be on a much anticipated family vacation, but the show must go on, and you will have the benefit of having a much smarter, deeper-voiced co-host sitting in for me, our friend and my former colleague, Dan Goldman.

Joyce Vance:

Dan and I have something in common. We have both worked with you. And so while you’re enjoying your vacation, we plan on telling stories about you.

Preet Bharara:

Yeah. Well … If it helps you get something off your chest to say the stories, that’s fine, and then we will not air them.

Joyce Vance:

All the stories are good. You’ve never done anything bad in your whole life, Preet, at least not that I know of.

Preet Bharara:

Not with you as a witness.

Joyce Vance:

Actually, I’m not so sure about that, but okay.

Preet Bharara:

Wait, I’m just … okay. I’m going to quit while I’m ahead. Send us your questions to letters@cafe.com.

Joyce Vance:

We look forward to answering your questions.

Preet Bharara:

That’s it for this week. CAFE Insider is presented by CAFE Studios and the Vox Media Podcast Network. Your hosts are Preet Bharara and Joyce Vance. The executive producer is Tamara Sepper. The senior producer is Adam Waller. The technical director is David Tatasciore, and the Cafe team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Noah Azulai, Matt Weiner, Jake Kaplan, Jennifer Korn, Chris Boylan, and Sean Walsh. Our music is by Andrew Dost. Thank you for being a part of the CAFE Insider community.