Speaker 1: 0:00

Welcome to arrested the only vive and local show that takes him into the belly of our criminal justice system. Cohosted by Mike Brooks and Atlanta criminal defense attorney, Dan Conaway of Conaway and Strickler PC. Good morning everybody. Thanks for joining us this morning on arrested. Well, it's been a busy week and the health

Speaker 2: 0:19

judiciary committee there, chairman of the House Judiciary Committee, uh, Jerry Nadler tell you what he is out to get president Trump one way or the other. Dan and, and, and right my right from the very beginning, even before they were sworn in and the new congress, he had already vowed that he wanted to impeach Donald Trump. Now they're coming after him. After the Koan hearings. They're asking for documents they want to subpoena. I've heard 61 people. I've heard 81 people. It's just, to me it seems like harassment. Can they really do this to president Trump and everybody in his orbit?

Speaker 3: 1:00

What can they do? What? Can they harass them or can they seen him or,

Speaker 2: 1:03

yeah, the cage subpoena because it's, it's it, they're after him for anything. But right now it looks like they're concentrating on obstruction of justice.

Speaker 3: 1:12

Yes. Okay. So I mean, they, they have every right to Democrats who have every right, they are the majority party now in the house. Uh, so they have every right to set up committees and to investigate and to provide oversight with respect to the president of United States and, uh, his, uh, cabinet and so forth and so forth. And it's part of their job, quite frankly. So they're supposed to provide oversight. So that's not a bad thing. Um, in this situation, however, we have Mister Nadler, uh, and, uh, I would quote an article that came out on March 5th, uh, from the Wall Street Journal. And this is interesting because it's not just, um, it's not an editorialist for the Wall Street Journal. It's the entire editor editorial board of the Wall Street Journal. And it says a Natalie's obstruction quest of structures and quotes, quotation marks. Uh, the examples he cites are crimes. Uh, our legal presidential actions. Examples. He sites, his crimes are legal, presidential actions, Wall Street Journal, editorial board, March 5th, 20, 19. All right, so we start with that and they cite a last Sunday Mr Natalie was on ABC's, uh, George Stephanopoulos on Sunday. Yeah. This week. Yup. Yup. So one of the things that's interesting about it is that he's talking about obstruction of justice and he really says, he thinks in his opinion, the president can be impeached, uh, or at least it's very clear that the president obstructed justice. So it's very, very clear. Then he cites all the examples and so forth and so forth. The problem is, is that the things he's talking about are largely covered in constitutional law and we can break it down some, but

Speaker 2: 3:12

yeah. Why does he say? He says, yeah, he and what are the letters and asking for the documents and it is age one individual's agencies and entities, including the president's son, Donald Trump, jr the trunk Org Organization of chief finance officer Allen Whistle Weisselberg and to publisher of the National Enquirer, David Pecker, who's a is accused of supposedly killing an unflattering news story about Trump during his candidacy. But Nan were said in that letter, quote, president Trump and his administration phase wide ranging allegations of misconduct did strike at the heart of our constitutional order.

Speaker 3: 3:53

Right? So that's what they said, right? Uh, the issue here is that that there's not really obstruction a, these are illegal actions by the president under, under article too. Before we get into that, let me just address the subpoena issue. Okay. Congress has every right to subpoena people, right? If they feel that it's relevant to an investigation that's worthy of oversight and worthy upon whatever they're investigating and looking into some type of misdeed by the president Trump himself or members of his administration, that's okay. They can do that. They can issue subpoenas. But those individuals that receive the subpoenas, they can fight back. And this, and this is something just so you know, I mean this is something that comes up all the time that we deal with this criminal defense attorneys. If you have a client who's charged with a crime or accused of a crime, or let's say they're the subject of an investigation, uh, they may receive a subpoena, right? Either to testify in front of the grand jury for instance, or to provide documents. And in those situations, it's their lawyers jobs to determine one, whether the CIENA is really relevant to whether it's nothing but a fishing expedition over that, whether it actually specifically requests documents, her information, her testimony that's really relevant to an investigation. Uh, and three are their defenses against it. And then finally, is it useful and is it in your client's best interest, meaning the lawyers, right? The lawyer's client, right? So as a lawyer, I always think, is it in my client's best interest to actually respond to this subpoena? I may say yes, I may say no. I might say maybe I might provide documents, I might not. But there are mechanisms without going through all the legal steps. The bottom line, is there a mechanism as to quash subpoenas, challenged subpoenas, narrow the scope of subpoenas so that you can push back when in if you have perhaps St, perhaps here. Right and overzealous. How's the investigatory committee chairman such as Mr Neteller. Exactly. Perhaps

Speaker 2: 6:21

now if you're going to fight a subpoena, yeah. By Congress, how do you go about it? I mean there's no judge, you know, you're, do you take it before a federal judge?

Speaker 3: 6:30

You have to ultimate ultimately it ends up in front of a federal judge. Okay. You have to challenge it the same way he was. Hands it challenge any other federalists peanut. Gotcha. Right. You get a ruling, you go out, you go back and forth. But the first thing you do, and this is already happening with some of these subpoenas, is the lawyers for these individuals that have received subpoenas or request for testimony in front of Congress have said, heck no. And quite frankly, based upon what we've seen as far as somebody coming in front of Congress, we're providing documents and then if they testify under oath or they testify in chambers, you know, behind closed doors, right? Or they'd provide documents and then six months later, boom, documents were used against you to hit you with an 18 United States code, 1001 violation, false statements to a government official. Right? So that's been such a pattern. In this particular case, if you're the accused or just the subject of an investigation, forget target. Just the subject that if I'm the lawyer representing one of these 61 individuals, and I want to be clear, I'm not, this is just my, my professional opinion, uh, I'd be very, very wary of responding to these subpoenas for documents where testimony and I would probably push back period.

Speaker 2: 7:58

Well, but it seems like it's a fishing expedition here because normally it could be called that Mike at the time because as an investor for investigator, uh, we investigate crimes, you know, and, and, and there's people that commit the crimes, but here they're going after specific individuals, uh, asking for all these documents. But where is the crime that they're alleging? Well, is it the obstruction of justice that they're alleging or are they, are they just throwing all these subpoenas out there and hopes of getting information from the different documents to try to charge someone with obstruction of justice? Mainly the president United States.

Speaker 3: 8:40

Right. And that's a great question. Obviously the issue is, is whether a, uh, are the subpoenas part of a relevant criminal investigation based upon relevant evidence that exists and is no, and therefore there's specific meaning the language and the speed of specific, right? Right. As far as what's the scope, what testimony is being sought with documents are being a wanted, requested so that it's not a fishing expedition. It's actually part of parcel level, legitimate criminal investigation, or at least an oversight investigation,

Speaker 2: 9:15

but, or an overreaching. But there's a big button, the buttons

Speaker 3: 9:22

is that subpoenas can also be used. And we've seen this in the past and I've certainly seen this as a criminal defense attorney where the government, clearly it's not sure what the crime is, but they know there's fish in that water somewhere. And so the casting a big net with a lot of subpoenas, a lot of target lenders may be right. And that's when you have to push back and say, no. And I think there's certainly evidence in this case, Mr Natalie, uh, that that's a distinct possibility. And he said some things that were on those Floridian, uh, during his, uh, when he was talking with Stephanopoulos, ah, that were hysterical. Um, uh, where he said, uh, you have to basically, in order to impeach Trump, and I'm quoting him from the Wall Street Journal article, in order to improve, in order to actually impeach Trump, Mr Nadler admitted it's on Sunday on the Sunday TV show. Yeah. You have to persuade enough of the opposition party voters, Trump voters, that you're not just trying to steal the last uh, excuse me to reverse the results of the last election and then it goes on from there. So basically we've got a Freudian slip where basically he's saying, look, we can't look like we're trying to steal back the election that we lost legitimate lane because you know, they lost the electoral college. It is what it is. And uh,

Speaker 2: 10:53

yeah, they want to change that too. But that's another, that's yet another show or another show.

Speaker 3: 10:57

So, you know, we'll see how this goes, but there's a lot more to discuss on this when we come back from the break. Absolutely. What other 40 hands slip? It's interesting with respect to the term steel used by mister nailer.

Speaker 2: 11:08

Interesting. And, and, and folks, wait till you hear what the top Republican on the judiciary committee, a congressman from here in Georgia had to say about what chairman Nadler is doing, coming up on arrested with Mike Brooks and criminal defense attorney Dan Conaway, other new talk, one of six seven. This is arrested with Mike Brooks. And Atlanta criminal defense attorney. Dan Conaway. Thanks for joining us. Good morning again on arrested. And let me tell you something. If you haven't gotten Dan Conway's book, that's title, just like to show arrested battling America's criminal justice system, you need to go on uh, arrested book.com or their checkout Amazon. You can order from there, Barnes and noble. But if you really want an insight into the criminal justice system in America, you need to pick up that book, arrested in America's criminal justice system. Run out and get it right now, but wait until the show's over and then you could run out and order it. Get along whenever you want to do. But, uh, we're talking about the fishing expedition as I was just calling it by the House Judiciary Committee Committee and, and the person who was leading the charge, Jerry Nadler, who was the chairman and a ranking Democrat on the House Judiciary Committee. But it was interesting talking about this, uh, this whole investigation representative Doug Collins of Georgia, he said after recklessly prejudging the president for obstruction, chairman Adler is pursuing evidence to back up his conclusion because as he admit, we don't have the fact yet. And again, that's from the ranking Republican on the House Judiciary Committee, uh, Georgia Representative Doug Collins. And that's what it seems like they're doing with these subpoenas, Dan.

Speaker 3: 13:05

It does, it looks like, um, and again, you know, we'll see what happens. But again, if I'm the attorney for one of these 61 folks are 81 folks or whatever the number is that's receiving his penis, I pushed back hard. Um, this is my professional opinion because there is certainly a perfectly reasonable argument to make that this is a fishing expedition. Right?

Speaker 2: 13:26

And, and they, he wants of all the requests for documents from everyone they want to return by March 18th. So

Speaker 3: 13:36

which is which, and again, you'll get a subpoena. Like, just to give an example, you know, we'll get a subpoena for client who has, you know, x number of pages of documents today. You would say bites or I, I'm not a computer guy, I can't remember it's gigabytes or whatever, but it's a lot. Boatload, a boatload of stuff that would be in banker's boxes in the past. It's now you have to put together, you have to assemble it, you have to review it. You can't just send stuff over. You can't say oh sure here and put like you know, pages on an attachment in an email cause shoot it over to the federal government. If you're a defense attorney, you have to review everything first. You may need to bring in your own expert to audit the documents with your client first because there may be information in there, for instance, financial information or banking information or information about a lease or something, right? A commercial lease, um, where you know, you need an expert per review. Those documents before you send them over. Wanting to make sure that the relevant and that the covered by the subpoena because you want to, if you are going to comply with the subpoena, you do want to comply with the right well, he may need an extra to help you to understand if you're even properly complying or not. Right? Let alone on the flip side pushing back. So you got all those issues there. But the issue here is that, and again, I'll quote uh, uh, Bob Barr, our new acting attorney general, um, and it essentially he blows the Adler obstruction of justice three out of the water. Uh, and then he says, you know, um, a president can obstruct justice while in office. This is bar. Yeah, Attorney General William Barr, a president construct to us as well in office, but only if he is committing a per se illegal offense. That is if he supports perjury, promotes perjury, right or destroys evidence. We're committed. Any deliberate act impairing the integrity or the availability of evidence. This is attorney journal. Bob Barr put it right. President Richard Nixon and Bill Clinton both committed such acts of Mr. Barnes view. Mr. Trump has not as far as we can see. Uh, on the other hand, the president cannot obstruct justice when he takes actions that are consistent with his article two powers under the constitution. Article two is the part of the constitution which lays out the powers of the executive branch, I. E. The president that includes in particular firing inferior executive branch officers such as Mr Comey. Exactly such acts may be politically stupid, but they're an obstruction and the motive and the firing doesn't matter. And it's interesting because you're here, you have someone like a constitutional law professor in criminal defense attorney Alan Dershowitz and attorney general Republican for Hw Bush and attorney general for now Donald Trump. Uh, William Barr in complete agreement, right. And Civil Libertarian. Dan Conaway, I'll throw my 2 cents in agreement as well, uh,

Speaker 2: 17:01

as a criminal or the documents said that he, uh, that of how, why and the whole process of why he fired Comey, which is as you

Speaker 3: 17:11

several things there that it really just, no, that doesn't work for obstruction. The first one is, is that you can't get into motive. The whole point is that they want to look at motive. The problem is, and there's, there's this has been established for very, very long time, is that first of all, motive as a general rule is not and has never an element that the government has to prove exactly of a criminal offense. Right? Right. Yup. No entrepreneur mode.

Speaker 2: 17:41

Well, even, even when, even in a murder case, you don't have to prove motive. No, you don't use, the jury would like to hear that jury always wants to know. Right. And the jury is always by that, right? Right.

Speaker 3: 17:50

So you have to kind of explain and many times it's a prosecutor that really has to explain it, not the defense so much. Um, that you know, you don't have to prove motive motives, just not relevant. So it's really not relevant here because it would open up as the Article Wall Street Journal editorial board says it would open up a Pandora's box. They would leave any political officer vulnerable to charges of obstruction. And so there you could really get any executive officer in a position where they have to make decisions where their ability to make the right decision is fundamentally impacted by this fear that they're going to get hit with an obstruction charge if they try to bring a motive. So it makes the motive thing makes no sense. None whatsoever to anybody. And it doesn't matter which side you're on politically, whether you're Alan Dershowitz, Dan kind of way or William Barr, we're all in agreement. That's nonsense. No, let me ask you, the White House yes. Is among the number of people that have recipients of the numerous document requests can, can the president and the White House claim executive privilege? They can, but I think it's premature. Okay. Um, and again, haven't seen this penis. Yeah. Don't know. But I think your standard arguments against the penis or where you started as the defense and that is, this is not relevant to anything. This is a fishing expedition. It's beyond the scope of anything you haven't claimed with crime as you can't define a crime. Exactly. We've admitted you don't have any evidence of one. And so therefore the subpoena should be quashed and just start with that. Yeah. And then work your way through it. But I don't see why if I get a subpoena under this for an Adler, yeah, I'm appeal, uh, my client, cause he'd supposedly, I don't know, did something, uh, relating to obstruction. Now there's another thing about the obstruction charge though. Alright. Who decided to go on national television and tell the American people that he did not believe that a candidate, Hillary Clinton, presidential candidate, Hillary Clinton should not be prosecuted under federal law, but because she was not grossly negligent in the handling of classified emails instead, she was only extremely careless. Now who made that call on national television? Was it the attorney general of the United States? No. Was it the Assistant Attorney General United States? No. Wasn't it the u s attorney for a particular district? Nope. It was who?

Speaker 2: 20:49

The director, the former director of the FBI, James Comey.

Speaker 3: 20:54

Now James Comey is worse director of the FBI has ever had. And Mike Brooks, who's opinion, I'll leave that with you if I yes. Um, when I know it's very simple and then it goes back to separation of powers. The FBI's job is to investigate crime, right? Yep, that's right. They have arrest powers, right? Yes, they do. They even have the right to use deadly force in certain situations? That's correct, but what do they not have the right to do to side both the prosecutor, not absolutely not what they're called.

Speaker 2: 21:24

You investigate a case and then you take that case and you take it to an assistant United States attorney or you take it somewhere in the Justice Department who are the prosecutors and they are the ones who decide whether they're going to go forward with that case or they're gonna decline to prosecute. It's not up to the FBI, not up to an agent. The deputy director, the deputy assistant director or the director himself, even though that particular director, James Comey at one time was a prosecutor and worked, you know, and worked at the Justice Department, but still in his role as director of the FBI. He's basically an FBI agent and it's not up to him to decide who's going to prosecute the particular case.

Speaker 3: 22:10

So therefore, if you have, if you're an F, okay, now if you're a US attorney, do you have arrest powers? No. Right. You don't. It's called separation of power. That's it. So we'll give him a little more into that afterwards. But there's a, I mean it's that links directly into this obstruction issue.

Speaker 2: 22:24

Exactly. So we're going to talk a little bit more about this obstruction. Um, powers of Congress and you know, these red flag laws, well, they're becoming more prevalent as a, as states start passing these laws. I think it's a slippery slope. We'll be talking about that and whole lot more. It's a rusted with Mike Brooks and criminal defense attorney gang Conaway. Oh, the new talk one oh six seven. This is arrested with Mike Brooks and Atlanta criminal defense attorney Dan Conaway drew us into arrested with my crush and criminal defense attorney, Dan Conaway. Thanks for joining us. And by the way, the book arrested battling America's criminal justice system is one of the best books that you will find on the American criminal justice system and what makes up the criminal justice system. And that book is by none other than Dan Conaway. And if you are interested in purchasing one of these books, you should, it's, it's, if you really want to know what goes on behind behind the screen, if you will, with America's criminal justice system picked up, arrested, you can go to arrested book.com you can go to Amazon, Barnes and noble. But I highly, highly recommend the book by Dan Kahnawake arrested. So then we were talking before we went to break, we're talking about, uh, James Call me and uh, but he has, he had no power whatsoever to declined to prosecute Hillary Clinton. That was totally out of his scope as director of the FBI. Right. As far as I'm concerned, he should have been fired right then and right there after he did that.

Speaker 3: 24:07

And I have to agree with that. And I reluctantly agree with that from the point of view that you hate to see, um, something like that going on within our governmental system because, but the separation of powers issues there are so big. That's why everybody has different, different powers, right? You have the group to police have the rest powers will, he's a police officer. He arrests investigates, has the right to use deadly force. Prosecutor has the right to prosecutor, not prosecutor. Defense lawyers job is to defend. Right? And the judge's job is to be the referee and make rulings and issue orders. Right. It's like if, just to give an example, if I were to go into a district court and try to tell the judge, judge, here's what motion that I'm arguing about, that evidence should be kicked out, thrown out against my client in a drug case. Okay. Yeah. And I'm going to say, by the way, judge, here's my argument. Here's my motion and I'm going to go ahead and make it. I'm going to write, I wrote an order and I'm going to in it. I'm going to sign it and now it's law. Well, the judge would either want, why don't you laugh hysterically too? He would then throw me in jail or you commit you to a mental institute. He'd be like, Mister Connery, I'm the judge. I'm the one who I'll you up, you move, I order. That's right. Lawyers move judges the water. Nobody can order but a judge and I news for your Vernon a courtroom. I don't care whether to municipal court on a traffic ticket or whether you're in a federal court on a major wire fraud case. I got a news release gentleman. He only person in their issue in any orders is the judge. Just know this situation. This was supposed to be entered by the Department of Justice. It should have been either the US attorney at the time. A little red a lunch. Yup. We're in one of her subordinates who was there explaining why the Department of Justice was declining or choosing to prosecuting Hillary Clinton and that's fine. That's their job. Right. And they make that call.

Speaker 2: 26:04

But then I can tell you when he did, when he came on TV and and made that statement, I was shocked. And as a lawyer, as a lawyer, as a chrome defense lawyer. I was like, what? Oh, and I can tell you, you know, I, I was assigned to the FBI fulltime, uh, for six years on the joint terrorism task force. And, you know, and I know how the system works and I know I'm saying to myself what my phone was blowing up by, by, uh, FBI agents and supervisors. I know, God, can you believe this? I mean, because they don't, the FBI,

Speaker 3: 26:36

they get this, they don't want, they know their role. They don't want to be stepping out of their role. Anybody any more than I want to try to issue an order in federal court. Exactly. Right. No, I mean, that was so Adeline, it was, to me, it was just incredible. Yeah. And it's just, you know, it just, um, and uh, and now there's another aspect to it too. And that has about the Flynn thing. Uh, the, the, again, this is us attorney Bob Barr in his memo that he wrote, this is when he was still in private practice. Right. Um, but basically what he says, this is on their face. The president's comments to Komi about Flynn, Flynn, Michael Flynn seem unobjectionable. Uh, and he says why he made the accurate observation. The Flynns call with the Russian ambassador was perfectly proper, which is true because it's getting things set up for the next administration. Exactly. Uh, that Mr. Flynn, uh, uh, who announced suffered public humiliation for losing his job was a good man. Based on this, he expressed the hope, the Comi would see his way clear, let the matter go. The formulation that, uh, Comey see his way clear, explicitly leaves the decision to call me. Most normal subordinates would not have found these comments. Obstructive and I believe during comix testimony, he basically said, you know, it was his call to make, right? So, you know, uh, and he is the chief again, the president is the chief law enforcement officer. That's right. So he can advise on cases if he wants. Um, so nothing, and also nothing was obstructed because Mr. Flynn was prosecuted. That's right. So there was no instruction? No. All right. So you know, the whole thing, they'll obstruction argument angle, it doesn't work. And it really, what this really comes down to with this whole thing really comes down to in a way as far as naturaler the subpoenas, the investigations in the house now that the Democrats have power and uh, so forth and so forth and so forth and so forth is we've, we've really got, is traditional tension between article one of the constitution and article two of the constitution article one of the constitution deals with the powers of Congress. Article two of the constitution deals with the powers of the president. And you know, you can Google the constitution, United States and just piddle come up such as pdf. You can read it yourself and very straight forward, uh, and it lists the types of powers each one has. And so without a new breeding, everything in here, the bottom line is that you've got a, and this is where before I say, I just want to say this to me is where you have the real genius of the founding fathers that wrote the constitution. They're, they're sweating our butts off in July, spring and summer of 1787. No air conditioning, no air conditioning, react them. They've got to where there's powdered wigs and all that. Uh, you know, uh, and, and they're sitting there and is a sweater like pigs. Yeah. There were the knickers and the stockings and the shoes will buckles and you know, and you know, they're sitting in there and, uh, and it's hot and the country has kind of fallen apart because I couldn't, the country was founded in 1783 and they had this thing called the articles of confederation, which weren't working the Ph, the federal government didn't have enough power. The states were doing whatever the heck they wanted to. There were rebellions over whiskey taxes and all sorts of crazy what's going on. So they all basically come back into the summer of 1787 and say, you know, all right, what can we deal suddenly draft up this constitution? Well. So it's cool about it is, and for people like me who loves the constitution and, and uh, you know, live by it largely because as a criminal defense attorney, uh, you work very hard to maintain the constitution and our rights under the constitution. It's our job along with zealously representing our clients. Right? All right, so here's the thing, they give the power of the purse to Congress, meaning they're the ones who can decide about money collected, borrowing money, credit the United States authorizing money for things, coining money, everything involving money as far as raising money, getting money. It should be everything goes to Congress. All right. Simplest Wagner's planet. On the flip side where the president is the commander in chief of the army and the navy and the militia, the several states when called an actual service, uh, so he has any also has the power to grant reprieves pardons for offenses against United States, blah, blah, blah. But the bottom line here is we've got a president who's commander in chief of the army and the navy and is in charge of executing the laws faithfully. So therefore the tension here is classic between the executive branch, the president versus the congress. The president is saying, look, this money was already appropriated. You gave me the f, the one, the first batch, they gave him 1.6 million or whatever. You can use that. The second batch is already out there. He's saying, I'm just diverting it as commander in chief from one source, military purpose to another. Right. And then finally you get down to the third part of the money, which is more cloudy as far as the power issue, but the power of the purse with Congress versus the power of the executive and the president to do what he wants to do with the money and money's already been appropriated for used by the military for issues and things like that. This is your standard classical article one article two constitutional fight. And that's okay. The brilliance of the founding fathers is it gave these powers to Congress in article one these other powers to Congress in article too. And they said, guess what guys? Y'all fight about it figured out and that's what they're doing and that's good. That's what we want, but, but you know, but this particular case with

Speaker 2: 32:40

the obstruction of justice with the House Judiciary Committee, I, I still feel that it, it's overreach by Natalie because Natalie[inaudible] right from the very beginning after the midterms and they found out that they were going to have the majority in the house. He, he started talking about impeachment and that's what this, the bottom line, this is all about,

Speaker 3: 33:03

and the political issue there, it's, it may just simply turned out to be a political issue and the issue, but the issue is if he ends up looking like he's the one who is overstepping the concentration, the, he's the one who ends up in hot water at least politically and arguably perhaps legally.

Speaker 2: 33:19

Exactly. Well, we'll see what I was going to be a, it's going to be a long road to 2020, and who knows what in other investigations, other committees in Congress will try to throw up to obstruct the Republicans, uh, coming up, rolling up to 20, 20 coming up next on arrested. Constitutional carry is being passed in many more states. And along with that, these red flag laws are being passed in many, many states is red flag laws. Are they constitutional? We'll be talking about all that coming up, but arrested with Mike Bruxton criminal defense attorney Dan Conaway, other new talk, one of six seven. This is arrested with Mike Brooks and Atlanta criminal defense attorney Dan Conaway. Thanks to tune into arrested with Mike Brooks crump defense Dar gang count. We appreciate you joining us this Saturday morning. Well Dan, many states are now starting to pass red flag laws and what are these? They're called extreme risk protection orders or they call them red flag laws. And if you look at some of the, if you look at some of the laws in the different states that are passing them, I mean, they can basically, if you were able to prove a family member of yours might be a danger to themselves or other, they can go before they can go to, uh, to the DA's office and they can get a criminal or they can get an order where the law, we're law enforcement would go out and confiscate your guns and keep them until that you're adjudicate until it's adjudicated that you are not a danger to yourself or others. I just think this is a, could be a slippery slope, you know, especially now a number of states are passing the constitutional carry where you don't have to get a concealed weapons license or permit from a particular state.

Speaker 3: 35:12

Yeah. It's funny because you look at the, you look at the maps, uh, as far as were the red flags was our, and they are in the, uh, west coast in Washington, Oregon and California and the Florida. Uh, and then in the northeast, uh, New York, Maryland, New Jersey, places like that.

Speaker 2: 35:35

So, you know, in Maryland you mentioned Maryland in Anaronda County, back of a back, a number of months ago, there was a, a order for the police to go and Scott complicated someone's gun shooting was right. Yeah. They not, they not going to man's door. Six o'clock in the morning, he came to the door with a gun in his hand. I told him, put the gun down. There was a struggle over the gun because he wouldn't, he refused to put it down and he wound up shooting and killing this particular man. Yep.

Speaker 3: 36:01

Who was in his house. And quite frankly, if anybody tried to came to my door at six in the morning, banging on the door, I might be tempted.

Speaker 2: 36:07

Oh hell yeah. But you know, the majority of these states that are there are looking at doing this. This has all been since the parkland shooting. You know, and, and right after that you had about eight states that enacted that legislation, uh, that allows law enforcement to remove guns from individuals deemed to be risk to themselves or other, but now it's increased. Every day I pick up, I pick up the, you know, looking double on the wire and there are more and more states passing these a red flag laws

Speaker 3: 36:34

and are quite frankly, they're, they're quite popular. Uh, as far as the, the articles that I've looked at say that they're quite popular. In other words, they have the support of the majority of the electorate in the states and, um, uh, you know, so they can certainly be passed at this point. I do think I, I'm not a fan of them. I think they're unconstitutional, uh, for a host of reasons as we've discussed previously. But, uh, ultimately these red flag laws will be brought up, uh, I believe, uh, in, in the court system, there'll be challenges for you. Then we'll see how they play out as far as whether or not there'll be enforced or not. The most troubling issue, and we've talked about this before, right, is the ex parte issue. Ex parte means that the only one side is represented. Only one side is hurted a court hearing and hear the person against whom the order's going to be issued. Uh, it never receives notice that there's even a court hearing going on. And to me

Speaker 2: 37:33

that's, that's, I mean that's that due process at all.

Speaker 3: 37:35

If I was the due process clause, which therefore then violates the fourth amendment clause to illegal search and seizure cause then they take the order and go over and sees the guns. Um, so it's just not in my mind in any way constitutional. Um, now beyond that, it's interesting because we have this poll and this is a, this whole issue with the gun thing is a classic state issue where you've got two s two sets of states. And, uh, I looked at different maps because you also have at the same time as you mentioned, Mike, you have more and more laws who are going to, uh, the right to carry, um, constitutional carry marches on. Yup. And, uh, this is an article, um, from routers, uh, that I've, I've pulled up and read online. It's interesting cause, uh,[inaudible] basically the system is simple and that is that you can, uh, you have a second one under the second amendment. The argument is that you have a right to carry a firearm and that you don't have to go through a permitting process and a training process and pay a fee and all this other stuff that you have to do in most states, right? Um, w w you know, gun, you can get your, you can submit your application, get your license and boom, you permit and boom, you start caring. So know it's interesting because this is not a new issue or carrying concealed at least right. Were carry concealed, right? Like you're in state of Georgia right here in the state of Georgia. Uh, Eh, this is an interesting issue because this is not something new. The first state to issue that there constitutional right to carry was Vermont. Not surprising in 1791. Wow. 1791. And, uh, then the next one was like in 1980 or something like that. 1900 was one in 1991, but then it's been expanding since, and a, so you have, instead of the states being on the west coast and states being in the northeast, instead you've got states of New England, like Vermont, Maine, and then you've got a in the heartland, if you will then fly over country where some would call it, uh, I don't call it that, but that's what some people call it. Um, you've got states, uh, Oklahoma, Montana, Wyoming, so forth and so forth who have already passed it or getting ready to pass it. And then ultimately human bunch of other states that are looking at it like Texas, Arkansas, Colorado, Georgia, potentially Alabama, so forth and so forth. Right? And so you've got an expansion in the center of the country and in places like New England, uh, and the West. Um, and they're going in this other direction. So, and it's interesting because you have one other thought on it, is remember what the constitution says in the second amendment, says the right to bear arms shall not be infringed. Well to bear. I haven't looked up my heritage dictionary today.

Speaker 2: 40:39

Last time I checked to bear means to carry airy. Right? Yeah. That's why I say what, whether it's open carry or concealed carry. It doesn't say store.

Speaker 3: 40:48

It isn't say keep in one's house. It says bear. So this goes directly to the second amendment where you have the right to bear arms. Right. So I dunno, you know, it's, but it seems to me that uh, uh, this is your classic state issue. We're states fight over it. Um, and this is a good thing. I uh, am very, I am very supportive of this kind of thing because I don't see why, uh, somebody who's living in New York or somebody who's living in Washington state has to have the same law that somebody living in Texas or Oklahoma or Vermont House.

Speaker 2: 41:26

I mean, New York and New Jersey are two of the toughest, uh, two toughest states. States. Yeah. To get, to get a permit to carry weapon, you have to register. Oh, because you have in your house. Oh yeah. And I've had cases involving that up there. Interesting. Uh, so you know where he, you know, I've got big hot water because that kind of issue, he failed to register. Yeah. You had those cases. DC was, was another state like that today. But now you can, you can, they were saying they would grant you a permit if you had a need, but that was, I mean, they, they took that to court and basically said, hey, no, the district of Columbia, you are infringing on people's constitutional right to own it

Speaker 3: 42:09

viral. There's nothing in the second moment. So the says you

Speaker 2: 42:11

need to bear arms. No, but say the say it's not as state, you know. Yeah. So, but I mean some people are saying, well, I'm not God. I want constitutional carry, uh, because I don't want to pay the$72 or whatever it is here to stay at Georgia, uh, to get my concealed weapon permit. And I shouldn't have to, it's a money grab for the, for the state because a lot of people argue as well that when you fill out the ATF form 44 73 to get a purchase a firearm in and do your background check that that should be enough. Yeah. Instead of, instead of getting a fingerprinted and photographed and the Gbi and the FBI, uh, approving that, they said it felt 44 73 that should be enough

Speaker 3: 42:58

and see and, and so there you got the, and there you've got the classic fight between law and order on the one hand, right. We need to make sure that everything people are safe, which is a legitimate concern. Yup. At the same time versus the second amendment, the right to bear arms. And so we've got a good discussion going in the country.

Speaker 2: 43:14

Exactly. We'll see where it goes and we will see where constitutional goes here in the state of Georgia during this legislative, uh, season. Well, Dan, thanks again for, uh, for joining. We're getting together and talking about the law. Thank you

Speaker 1: 43:28

for listening to arrested. Mike Brooks, Crema fencer, Dan Conaway on the new talk, what a six to seven. Thanks for listening to arrested with Mike Brooks and Atlanta criminal defense attorney Dan Conaway. While this show provides general information, it does not constitute legal advice. The best way to get guidance on your specific legal issue is to contact a lawyer. For more information or to schedule a meeting with an attorney, please visit Conaway and strickler.com.