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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 2: The man accused of being the mastermind of September eleventh

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Speaker 2: will be spared the death penalty in a deal with

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Speaker 2: the government. On Wednesday, the Defense Department announced that colleague

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Speaker 2: Sheik Mohammed and two of his co conspirators will plead

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Speaker 2: guilty to the murder of two thousand, nine hundred seventy

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Speaker 2: six people in exchange for taking the death penalty off

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Speaker 2: the table. It's a dramatic and to many, unwelcome development

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Speaker 2: in the prosecution of the deadliest terrorist attack on US soil,

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Speaker 2: a prosecution that's dragged on for more than two decades,

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Speaker 2: marred by reports of CIA torture and botched evidence. Terry Strata,

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Speaker 2: the head of nine to eleven Families United, says the

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Speaker 2: vast majority of the victim's families are angry about the

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Speaker 2: deal and feel that justice has been denied.

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Speaker 3: He will not stand trial and he will not face

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Speaker 3: a punishment by death, which is what was on the table.

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Speaker 3: So this is something that PSM and the others wanted.

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Speaker 3: So it's a victory for them, and I don't feel

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Speaker 3: like we should ever give them a victory. This is

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Speaker 3: a sign of a very weak leadership in our country

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Speaker 3: to strike such a deal.

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Speaker 2: President Joe Biden is distancing himself from the deal, saying

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Speaker 2: in a statement that he played no role in the process.

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Speaker 2: Joining me is national security expert Matthew Waxman, a professor

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Speaker 2: at Columbia Law School. Why have the trials of these

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Speaker 2: nine to eleven defendants been delayed for decades?

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Speaker 4: So right from the start, I think the military commissions

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Speaker 4: that were set up to prosecute detainees at Guantanamo for

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Speaker 4: war crimes has been a failed policy. They were supposed

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Speaker 4: to be set up in order to provide with justice,

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Speaker 4: but they've delivered anything but that. And I think there

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Speaker 4: have been a number of problems that have flowed down

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Speaker 4: the prosecutions, and especially these that are subject to this

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Speaker 4: plea deal. When detainees were captured, whether on the battlefield

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Speaker 4: or elsewhere, those agencies that picked them up were not

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Speaker 4: preparing a case for trial. They weren't collecting evidence as

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Speaker 4: you would in order to prosecute a criminal trial. There

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Speaker 4: have been issues of evidence or confessions that have been

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Speaker 4: obtained allegedly by torture. There are legal challenges that have

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Speaker 4: been made, some of which have gone all the way

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Speaker 4: up to the Supreme Court that have slowed down the process.

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Speaker 4: And whenever you set up an entirely new court system,

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Speaker 4: you have to basically develop all kinds of rules and

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Speaker 4: processes from scratch.

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Speaker 2: Tell us about the alleged mastermind. Colleague, Sheik Mohammed.

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Speaker 4: And he's usually known by those initials, is accused of

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Speaker 4: plotting the attacks of September eleventh, two thousand and one.

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Speaker 4: He's one of thirty detainees who are still held at Guantanamo.

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Speaker 4: And he was a US trained engineer who becomes a

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Speaker 4: key leader of al Qaeda, and he and two of

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Speaker 4: his accomplices have agreed to this plea deal. They've been charged,

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Speaker 4: among other things, with murdering three thousand people in the

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Speaker 4: September eleventh attacks, and the basic terms of the plea

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Speaker 4: deal are that they will plead guilty to murder and

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Speaker 4: other charges in return for a life sentence rather than

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Speaker 4: the possibility of a death penalty.

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Speaker 2: I can see what the defendants are getting out of

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Speaker 2: this deal, but what is the government getting out of

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Speaker 2: this deal.

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Speaker 4: I think it's a good deal for the government. And

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Speaker 4: here's why I'll be glad to see this case put

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Speaker 4: to rest. I doubt this case would ever have been

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Speaker 4: concluded if it proceeded, and actually carrying out a death

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Speaker 4: sentence would have been a disaster, however much they may

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Speaker 4: deserve it. So let me just say I'm conflicted on

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Speaker 4: the death penalty because these are some of the worst

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Speaker 4: people on earth who've committed unspeakable horrors. But I think

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Speaker 4: actually carrying out a death sentence in this case would

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Speaker 4: have been a disaster. I do feel for families of

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Speaker 4: the September eleventh victims who have had to endure the pain,

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Speaker 4: especially of watching this unfold, and I know that they

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Speaker 4: want finality, and many of them are very supportive of

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Speaker 4: the death penalty. But even if it were carried out,

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Speaker 4: and I'm very skeptical that the government would actually have

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Speaker 4: been able to impose the death penalty, I think in

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Speaker 4: this case it would make a martyr of these detainees.

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Speaker 4: The story would understandably be that the United States has

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Speaker 4: put to death somebody who's been subjected to torture. That

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Speaker 4: would only add to the terrible stain of Guantanamo and

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Speaker 4: the CIA enhanced interrogation policy.

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Speaker 2: You mentioned the families Terry Strata had of one group

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Speaker 2: of families said, I wanted to see a trial, and

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Speaker 2: they took away the justice. I was expecting a trial

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Speaker 2: and the punishment. And Brett Eagleson, president of nine to

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Speaker 2: eleven Justice, said, we're deeply troubled by these plea deals.

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Speaker 2: Should the government go ahead with a plea deal that

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Speaker 2: so many of the family members disagree with.

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Speaker 4: Well, this is a terrible dilemma for the government. And

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Speaker 4: as I've said, I very much feel for the families

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Speaker 4: who have had to endure not just the unspeakable pain

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Speaker 4: of the deaths of their loved ones, but twenty years

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Speaker 4: of this process dragging on. I do hope that they

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Speaker 4: feel some sense of justice. But there are other very

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Speaker 4: powerful concerns and interests at stake here, and the US

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Speaker 4: government has to do what's right taking into account all

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Speaker 4: of these various factors. As I said, I don't think

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Speaker 4: the death penalty ever would have been carried out in

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Speaker 4: this case, and I think the death penalty would have

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Speaker 4: carried immense damage to the United States interests, especially abroad.

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Speaker 2: Why is the government not releasing the details of this

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Speaker 2: might be because some of the details might be objectionable.

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Speaker 4: I suspect some of the details are still being worked out.

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Speaker 4: I think some of them will need to be approved

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Speaker 4: by the military commissions and through some other processes. But

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Speaker 4: this is also one of the challenges of moving a

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Speaker 4: case like this through a military justice process that hasn't

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Speaker 4: really been tested. A lot of what's going on in

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Speaker 4: military commissions is new, and so we don't know for

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Speaker 4: sure how some of these processes are going to play out.

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Speaker 4: That's been one of the problems plaguing military commissions from

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Speaker 4: the beginning is that this is an untested process, and

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Speaker 4: two of.

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Speaker 2: The five other nine to eleven defendants are not part

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Speaker 2: of this plea deal.

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Speaker 5: That's right.

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Speaker 4: For several years now, it's been reported that a deal

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Speaker 4: like this has been in the work, some sort of

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Speaker 4: plea deal for a life sentence in return for pleading

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Speaker 4: guilty rather than the possibility of the death penalty. Originally,

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Speaker 4: it was talked about as possibly involving five of the

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Speaker 4: direct perpetrators or leaders of the nine to eleven attack plot.

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Speaker 4: I don't know why we're now talking about a deal

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Speaker 4: involving only three, but over the course of the last

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Speaker 4: few years, we've heard that this deal is sort of

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Speaker 4: on again, off again, and so there are any number

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Speaker 4: of possible reasons.

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Speaker 2: Looking at the big picture here, the government is disappointing

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Speaker 2: most of the family members with this deal. They're getting

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Speaker 2: a life sentence for the murder of three thousand people,

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Speaker 2: and the deal only covers three out of the five

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Speaker 2: suspected terrorists. Even the president is distancing himself from the deal.

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Speaker 2: So after more than twenty years, doesn't this seem like

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Speaker 2: a complete failure.

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Speaker 4: So right now, there are thirty detainees out of a

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Speaker 4: total of roughly eight hundred who were brought to Guantanamo

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Speaker 4: since it opened in two thousand and two. Most of

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Speaker 4: them have been transferred or released, some of them to

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Speaker 4: their home countries, some of them to third countries with

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Speaker 4: varying restrictions. Some of them were transferred for continued detentions,

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Speaker 4: for example, in their home countries. Of those who remain

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Speaker 4: at Guantanamo, about half have also been approved for or

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Speaker 4: some sort of transfer, but we don't know whether that

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Speaker 4: will happen anytime soon. A few, though, will never be charged.

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Speaker 4: They're going to be held indefinitely without any sort of prosecution.

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Speaker 4: I think Guantanamo has been a failed policy. It was

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Speaker 4: originally opened to be a place that would hold only

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Speaker 4: the very worst of the worst, and it turned out

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Speaker 4: that many detainees who were brought there should never have been.

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Speaker 4: Either they were cases like mistaken identity, or they were

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Speaker 4: low level al Qaeda or Caliban figures. It was also

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Speaker 4: supposed to be an interrogation and intelligence center where the

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Speaker 4: government would be able to obtain a vast amount of

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Speaker 4: information about future al Qaeda plots and networks, and I

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Speaker 4: think it failed in both its detention mission and its

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Speaker 4: intelligence mission. That doesn't mean that it was not valuable

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Speaker 4: in some important ways. It kept many very very very

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Speaker 4: dangerous people off the battlefield and prevented them from conducting

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Speaker 4: further attacks. It also did provide some important intelligence information,

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Speaker 4: never as much as I think was expected, but it

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Speaker 4: did provide some very very important information. But from the beginning,

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Speaker 4: there was never really a good plan for what was

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Speaker 4: going to happen to the detainee's long term. There were

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Speaker 4: insufficient processes put in place for figuring out which detainees

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Speaker 4: should be detained there and which ones shouldn't. It is

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Speaker 4: indelibly associated with this idea of a legal black hole

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Speaker 4: and with torture, and I think many of those costs

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Speaker 4: continue to accrue over time.

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Speaker 2: Former Attorney General Eric Holder told NBC News that quote,

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Speaker 2: the people responsible for structuring this awful deal did the

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Speaker 2: best they could. He said, they were dealt a bad

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Speaker 2: hand by the political hacks who blocked the trial of

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Speaker 2: ACCU September eleventh terrorists in federal court nearly fifteen years ago.

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Speaker 4: As of today, only one detainee from Guantanamo was brought

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Speaker 4: into the United States for prosecution in federal court here

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Speaker 4: in New York. It was fought in the Obama administration

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Speaker 4: that they would be able to bring many more, but

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Speaker 4: that plan was shut down really for political reasons. There

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Speaker 4: was a lot of opposition in Congress, which then put

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Speaker 4: restrictions on transferring any detainees out of Guantanamo and barring

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Speaker 4: bringing them into the United States. But this also gets

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Speaker 4: through a broader problem, which is it's very easy to

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Speaker 4: say that Bontanamo is a mistake, Guantanamo should be shut down,

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Speaker 4: but it's very hard to figure out what should you

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Speaker 4: do instead, And just saying we should bring them into

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Speaker 4: the United States for prosecution wouldn't work. Just saying you

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Speaker 4: should send them back to home countries or third countries

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Speaker 4: wouldn't work. It's very very hard to figure out what's

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Speaker 4: going to happen to the remaining thirty detainees at Guantanamo.

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Speaker 4: The government has been working hard to shrink that number

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Speaker 4: even further, but it's very hard to figure out what

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Speaker 4: is a viable alternative to holding them at Guantanamo. And

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Speaker 4: I think part of this goes back to the very

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Speaker 4: beginning that it wasn't designed with really long term thinking

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Speaker 4: in place.

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Speaker 2: I do want to mention that there will be a

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Speaker 2: sentencing hearing for the three defendants and we may learn

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Speaker 2: more then. Thanks so much for being on the show.

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Speaker 2: That's Columbia Law School professor Matthew Waxman. I'm June Grosso

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Speaker 1: they're not going to pay more money going forward.

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Speaker 2: The lawsuit is another chapter in the deteriorating relationship between

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Speaker 2: the NBA and Turner Sports, a relationship that's lasted nearly

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Speaker 2: forty years. Joining me is entertainment and media lawyer Ronald Beanstock,

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Speaker 2: a partner at Scarincy Hollandbeck. What happened here? As far

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Speaker 2: as you can make out.

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Speaker 5: There's a lot of redactions in the complaints, so it's

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Speaker 5: kind of hard to know from the specifics of the agreement.

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Speaker 5: But I will tell you what I think of. So

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Speaker 5: this is really a fight between tech corporate structure looking

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Speaker 5: to find their way into the larger dollars of entertainment properties.

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Speaker 5: And you can't get any biggers really than sports versus

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Speaker 5: the old school broadcasting. You've got a company T and

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Speaker 5: T here who has had the right for forty years

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Speaker 5: within their agreements. With the definition of the words match

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Speaker 5: right commonly use part of entertainment agreements where somebody who

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Speaker 5: has rights to something would like to keep those rights

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Speaker 5: to something, but they allow a third party come in

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Speaker 5: make the offer and it gets the match and then

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Speaker 5: you know you've got a usurper if you will. Tech companies, Amazon,

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Speaker 5: obviously Disney that comes in and says, I want to

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Speaker 5: make a really great offer to you. I'd like to

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Speaker 5: bring this asset to our camp, and we think we

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Speaker 5: can do really well with the billions of dollars every year.

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Speaker 5: We think we can enhance the NBA's income and enhance

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Speaker 5: ours obviously, bring bigger and better advertising dollars to their

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Speaker 5: format and in subscriptions, and we'd like to make an

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Speaker 5: offer on this somewhere. They made that offer right, The

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Speaker 5: timing was correct. They made the offer, and T and

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Speaker 5: T had two quote match. So T and T says

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Speaker 5: we matched, we match timely. That's not in dispute. Seems

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Speaker 5: to be able, all done correctly. But Amazon is saying,

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Speaker 5: and apparently NBA is saying, no, you didn't, you didn't match.

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Speaker 5: According to the agreement, we have other services or other

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Speaker 5: things we can offer. You didn't match, that you're only

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Speaker 5: matching the initial offer. And that definition of match is

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Speaker 5: one of the crucial discussions with billions of dollars at stake.

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Speaker 2: I mean, what's the general interpretation of what match means

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Speaker 2: in a contract like this?

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Speaker 5: So in interesting businesses like this, the match would be

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Speaker 5: first right, like a first right of refusal. And the

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Speaker 5: definition I'm not clear about. No one's clear about because

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Speaker 5: it's contractual language is underdacted from the complaint. But there's

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Speaker 5: a real difference here, and that is the difference would

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Speaker 5: be between I get to match and the words that

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Speaker 5: are using the complaint as an incumbent, which is not

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Speaker 5: a commonly used word in entertainment property agreement incumbent, and

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Speaker 5: that it says as an incumbent, TBS has the right

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Speaker 5: to match any quote third party offer end quote for

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Speaker 5: future NBA telecast rights right to match any third party offer,

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Speaker 5: which would indicate to me that it's an initial match right.

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Speaker 5: If someone says two hundred, and I say I'll give

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Speaker 5: you two hundred, I'll match that. Now it stays with me.

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Speaker 5: I am, as they call it, the legacy or incumbent.

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Speaker 5: Here on the legacy license fee, I would maintain my

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Speaker 5: rights the term length of the next portion of this

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Speaker 5: agreement of eleven years. That would be over fifty years

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Speaker 5: of retaining rights in terms of a license fee to

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Speaker 5: a piece of property like this. And that's probably where

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Speaker 5: everybody is fighting this because the tech companies think by

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Speaker 5: do a better job. So the word match looks like

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Speaker 5: initial match many times when we're negotiating entertainment property agreements

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Speaker 5: like this. Music business is a good example, music publishing

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Speaker 5: record deals or things of this nature. Licensing deals. We

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Speaker 5: have last match. That's a preference of mine because if

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Speaker 5: you say two hundred, but that's not the fully ending

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Speaker 5: negotiated deal, I think I can get you to three.

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Speaker 5: I don't want you to match two. I want you

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Speaker 5: to match the deal I'm willing to execute. That would

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Speaker 5: be what the match right should say. I don't know

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Speaker 5: because it's been redacted, so we'll have to find out

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Speaker 5: as discovery goes on.

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Speaker 2: In the new TV rights deal, national games will be

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Speaker 2: distributed across Amazon Prime Video, NBC's broadcast network, Talk streaming service,

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Speaker 2: and Disney's ABC and ESPN platforms. And it's not just

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Speaker 2: matching the money, is it. It's also matching the scope.

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Speaker 5: Yes, I think that that's part of the process, and

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Speaker 5: I think the match is the scope. What can we

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Speaker 5: offer in terms of SBOD, subscription video on demand. I

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Speaker 5: think this is all within the concept of the match,

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Speaker 5: because I don't think the match was one sentence gentleman

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Speaker 5: get says, here's the money.

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Speaker 2: Match it.

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Speaker 5: I think structurally it's the scope clearly territories worldwide, but

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Speaker 5: it's scope in terms of what we have to offer

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Speaker 5: and what platforms. I think that's a part of this.

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Speaker 5: I think that they're trying to say, you're an old

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Speaker 5: school broadcaster, but TNT has other platforms that they get

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Speaker 5: to put it onto. MAC So I think these are

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Speaker 5: parallel universes colliding. I don't know if they're exactly in

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Speaker 5: the same size universe, but I think that they are

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Speaker 5: structurally similar because MAX allows the similar version of platform

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Speaker 5: structure as the Amazon would have as well.

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Speaker 2: Suppose this is about the NBA saying this, this new

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Speaker 2: deal is just better for our brand long term. Where

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Speaker 2: does that fit into the equation?

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Speaker 5: Someone is looking at this in the long term process, right,

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Speaker 5: Someone's saying this is better for us in terms of

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Speaker 5: the NBA brand and our largest in the future. Clearly

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Speaker 5: that's what's at stake here. Somewhere in that agreement between

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Speaker 5: P and T and the NBA this forty year. That's

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Speaker 5: a lengthy, lengthy relationship which apparently, according to whatever I've

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Speaker 5: seen in the press and people that I know, has

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Speaker 5: not been the best in the last few years that

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Speaker 5: there's been a lot of discussion about this, you know,

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Speaker 5: and again I'm going to reiterate that point about tech

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Speaker 5: giants versus old school broadcasters. There seems to have been

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Speaker 5: a exclusive negotiation period that was the precursor to this match.

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Speaker 5: So it looks like there was some over the last year. Contractually,

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Speaker 5: they were obligated to have not mediation, but a negotiation

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Speaker 5: where they would sit in that room and they would

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Speaker 5: try to knock out their new agreement and it didn't work.

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Speaker 5: Somewhere in the NBA is keep people in the or

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Speaker 5: the owners, whoever was involved, said no, it's not structurally sufficient.

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Speaker 5: We think we can do better. We think the NBA

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Speaker 5: brand can do better at this different set of platforms.

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Speaker 5: But they had that moment and it didn't work out.

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Speaker 2: Warner Brothers is asking for a jury trial. Is it

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Speaker 2: difficult to line up two different offers like this for

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Speaker 2: a jury when it's not just a question of money.

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Speaker 5: I don't think it's that sophisticated. Looks this jury trial demand, yes,

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Speaker 5: but think about what we've got here. We've got in

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Speaker 5: the quest for the junctive relief specific performance. But if

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Speaker 5: we get to a jury, this to me looks like

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Speaker 5: you can put the two offers up on large boards

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Speaker 5: in front of a jury and go, there's their offer,

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Speaker 5: here's our offer.

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Speaker 4: Look at ours.

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Speaker 5: You see we match that.

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Speaker 1: There it is.

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Speaker 5: It's not difficult areas of law. It's going to be

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Speaker 5: how do you define match? And did we do it?

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Speaker 5: Getting to that though, oh my goodness, we have a

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Speaker 5: long way to go. We have all this other stuff

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Speaker 5: we're going to have to go through.

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Speaker 2: Interesting that Turner in its complaint said that we I

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Speaker 2: strongly believe that this is not just our contractual right,

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Speaker 2: but also in the best interest of fans who want

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Speaker 2: to keep watching our industry leading NBA content.

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Speaker 5: They've come to think of it as their own the

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Speaker 5: property they call their asset, which they shouldn't be calling

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Speaker 5: its assets, but they do. In that complaint. That's very telling.

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Speaker 7: They have a.

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Speaker 5: Large investment in the NBA broadcasters and experts and color commentators.

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Speaker 5: That's a lot of money that got invested, and they've

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Speaker 5: been very successful with that. I think they've won their

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Speaker 5: own Emmys. I think that's a huge part of this

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Speaker 5: that they say, look, we pay Charles Barkley X and

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Speaker 5: we have the best people to do this. Now who

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Speaker 5: you going to bring on to do this?

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Speaker 1: Right?

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Speaker 5: Look at what you've invested into this. And I think

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Speaker 5: that's part of this. And I think that what they're

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Speaker 5: trying to say in the complaint is that we've got

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Speaker 5: so much invested and look at the terrible losses that

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Speaker 5: will suffer. Well, I have a hard time. I mean,

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Speaker 5: that's forty years. Did you do everything in the forty years?

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Speaker 5: I think that's going to come up right. They're going

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Speaker 5: to say they got complacents. Sure, they had these great

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Speaker 5: teams of experts, these really popular posts, you know, It's

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Speaker 5: interesting to see in the complaint. I want to say,

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Speaker 5: it's a woes me kind of thing, saying how terribly

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Speaker 5: will be hurt. Sure, that's what complaints say, but that's

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Speaker 5: not the point here. Did you match it? Did you

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Speaker 5: follow what they had said? I also want to know

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Speaker 5: what went wrong in that exclusive negotiation period, what happened there,

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Speaker 5: and ultimately, you know, if it doesn't work out, there

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Speaker 5: may be a split. The baby here it is State

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Speaker 5: Court is State Supreme in New York, so this won't

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Speaker 5: be the first time anybody does something like this. They

390
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Speaker 5: may say, you know what, for the first three years,

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Speaker 5: we may give key games to stay with T and

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Speaker 5: T and their team, and then regular season games X, Y,

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Speaker 5: and Z will go over here, and then eventually we're

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Speaker 5: going to morph this all entirely over to the new licensee.

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Speaker 5: That may be how this gets done. Nobody's going to

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Speaker 5: want to have this extend past even the preseason, so

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Speaker 5: I think they're going to have to figure out methodologies

398
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Speaker 5: to compromise at some point. It's not like they're going

399
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Speaker 5: to postpone the season, so I think that the issue

400
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Speaker 5: is going to start to come up pretty fast and furious.

401
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Speaker 5: There's billions and billions to stake.

402
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Speaker 2: Here are court's reluctant to force someone or a party

403
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Speaker 2: into a deal they don't want to be in.

404
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Speaker 5: Yes, simplest answer I can give. Yeah, that's a common

405
00:23:12,480 --> 00:23:16,040
Speaker 5: discussion and entertainment properties. If an artist wants off a label,

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Speaker 5: the judge's going to say, how do you guys getting along?

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Speaker 1: Oh?

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Speaker 5: Terribly? Okay, Now I want you guys back together, shake hands,

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Speaker 5: Come on, you can put it back. Never happens. It

410
00:23:24,960 --> 00:23:29,080
Speaker 5: never happens that way. There's always some override, similar to

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Speaker 5: the theory here of certain games being split up. There

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Speaker 5: may be an override on structure of money. There may

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Speaker 5: be a way to uo two records to this person.

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Speaker 5: Oh you owe five songs to this publisher. Oh you

415
00:23:38,960 --> 00:23:42,359
Speaker 5: owe twelve episodes the original production company. Yeah, we do

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Speaker 5: that to get through the process, so we don't kill

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Speaker 5: the golden goose here. Enter hument properties take decades, if

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Speaker 5: not lifetimes to develop like this, and so nobody wants

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Speaker 5: to hurt that. So I think that they're going to

420
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Speaker 5: be ways we get this resolved that may not be

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Speaker 5: in a standard methodology. I think there's gonna be a

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Speaker 5: lot of beating and Chambers I think there's a lot

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Speaker 5: of meetings with everybody just discussing how to make this work.

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Speaker 2: So it sounds like you think there'll be some kind

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Speaker 2: of settlement before this ever gets close to a jury.

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Speaker 5: I think there's a possibility there's going to be a

427
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Speaker 5: series of workaround to try to satisfy some immediacy for

428
00:24:17,920 --> 00:24:20,159
Speaker 5: T and T. But I think eventually there's going to

429
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Speaker 5: be a transition unless everything has gone wrong from the

430
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Speaker 5: Amazon point of view in terms of where the match

431
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Speaker 5: was and how you define match, And it sounded like

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Speaker 5: something happened in that definitional process. Somebody says we did it.

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Speaker 5: The other side NBA is saying, no, you didn't do that.

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Speaker 5: Is it based upon as you and I just discussed

435
00:24:39,480 --> 00:24:42,399
Speaker 5: the variable platforms and the extent the nature of the

436
00:24:42,440 --> 00:24:45,040
Speaker 5: other digital platforms. It's hard to know. The redactions make

437
00:24:45,040 --> 00:24:47,000
Speaker 5: it hard to know, because at the end of the

438
00:24:47,040 --> 00:24:50,480
Speaker 5: complaint June, there is a series of redactions where it's

439
00:24:50,760 --> 00:24:55,840
Speaker 5: effectively saying the Amazon offer they did something here that

440
00:24:56,280 --> 00:24:58,720
Speaker 5: wasn't in good faith. It's a bad faith effort to

441
00:24:58,760 --> 00:25:03,399
Speaker 5: deprive TBS contractual right. They found a way around it

442
00:25:03,640 --> 00:25:06,280
Speaker 5: that's pretty hefty. We don't know what the language was,

443
00:25:06,600 --> 00:25:10,119
Speaker 5: but they're saying they caused the match to be rejected.

444
00:25:10,320 --> 00:25:11,719
Speaker 5: Has to be proof of that. What did they do?

445
00:25:11,960 --> 00:25:13,639
Speaker 5: You know where that's the enter. What did they do?

446
00:25:13,840 --> 00:25:16,159
Speaker 5: What was so crafty about these guys that they were

447
00:25:16,200 --> 00:25:18,359
Speaker 5: able to convince them that they could get around the match?

448
00:25:18,400 --> 00:25:18,560
Speaker 7: Right?

449
00:25:18,760 --> 00:25:20,520
Speaker 5: That's redacted. We're gonna have to go find out once

450
00:25:20,520 --> 00:25:21,760
Speaker 5: this proceeding really gets rolling.

451
00:25:21,920 --> 00:25:24,920
Speaker 2: That certainly adds to the drama here. Thanks for coming

452
00:25:24,920 --> 00:25:28,399
Speaker 2: on the show. That's Ronald Beanstock of Scarincy Hollandbeck.

453
00:25:29,119 --> 00:25:33,240
Speaker 7: These scandals of Olvi's the justices have caused public opinion

454
00:25:33,280 --> 00:25:35,360
Speaker 7: to question the Court's fairness and independence.

455
00:25:35,680 --> 00:25:39,119
Speaker 2: The public's confidence in the Supreme Court has fallen to

456
00:25:39,400 --> 00:25:44,640
Speaker 2: historic lows following a series of controversial rulings that overturned

457
00:25:44,840 --> 00:25:50,159
Speaker 2: landmark decisions on abortion rights and federal regulatory powers, established

458
00:25:50,200 --> 00:25:53,280
Speaker 2: the right to carry a handgun in public, and determine

459
00:25:53,280 --> 00:25:57,600
Speaker 2: that former presidents have broad immunity from prosecution. So, with

460
00:25:57,720 --> 00:26:01,320
Speaker 2: less than six months left in his Presienceancy Joe Biden

461
00:26:01,400 --> 00:26:04,560
Speaker 2: is calling for dramatic changes to the Court that have

462
00:26:04,880 --> 00:26:06,560
Speaker 2: no chance of being enacted.

463
00:26:06,960 --> 00:26:09,280
Speaker 7: We need these reforms. We sort trust in the courts

464
00:26:09,840 --> 00:26:13,080
Speaker 7: preserve the system of checks and balances that are vital

465
00:26:13,119 --> 00:26:15,960
Speaker 7: to our democracy. We're also common sense.

466
00:26:15,760 --> 00:26:22,960
Speaker 2: Reforms, common sense, perhaps controversial, definitely. Joining me is William Traynor,

467
00:26:23,040 --> 00:26:27,160
Speaker 2: dean of Georgetown Law and a constitutional history scholar. Let's

468
00:26:27,200 --> 00:26:30,880
Speaker 2: start with Biden's proposal for term limits for the justices.

469
00:26:31,280 --> 00:26:34,879
Speaker 2: A president would appoint a justice every two years and

470
00:26:34,960 --> 00:26:38,440
Speaker 2: that justice would sit eighteen years on the court. This

471
00:26:38,560 --> 00:26:41,080
Speaker 2: isn't a new idea. But could it be done through

472
00:26:41,160 --> 00:26:44,679
Speaker 2: legislation or would it take a constitutional amendment?

473
00:26:45,160 --> 00:26:47,480
Speaker 6: No, this is not a new idea. The start of

474
00:26:47,480 --> 00:26:51,440
Speaker 6: his administration, President Biden appointed a commission to look at

475
00:26:51,640 --> 00:26:55,040
Speaker 6: the possibilities of Supreme Court reform, and this is one

476
00:26:55,040 --> 00:26:57,520
Speaker 6: of the proposals that they made. So it's something that

477
00:26:57,640 --> 00:26:59,639
Speaker 6: people have been focusing on for a number of years.

478
00:27:00,160 --> 00:27:03,119
Speaker 6: Debate about whether it requires constitutional amendment. I think it

479
00:27:03,200 --> 00:27:07,720
Speaker 6: should be constitutional because historically the duties of Supreme Court

480
00:27:07,840 --> 00:27:11,080
Speaker 6: justices have not always been the same, and so this

481
00:27:11,200 --> 00:27:14,359
Speaker 6: is similarly just altering what the duties of Supreme Court

482
00:27:14,480 --> 00:27:17,320
Speaker 6: justices would be. But again that's something that good people debate.

483
00:27:17,600 --> 00:27:21,080
Speaker 2: Yeah, some argue that the term limits proposal is at

484
00:27:21,080 --> 00:27:25,760
Speaker 2: odds with Article three, which provides that justices shall hold

485
00:27:25,800 --> 00:27:28,000
Speaker 2: their offices during good behavior.

486
00:27:28,440 --> 00:27:30,359
Speaker 6: So one of the questions is, you know, is this

487
00:27:30,440 --> 00:27:33,080
Speaker 6: consisting with the original understanding? And I think it is

488
00:27:33,200 --> 00:27:35,480
Speaker 6: one of the changes that we've seen over time. There

489
00:27:35,560 --> 00:27:38,720
Speaker 6: is Supreme Court justices are now on the court much

490
00:27:38,760 --> 00:27:40,520
Speaker 6: longer than they were at the beginning. So if you

491
00:27:40,560 --> 00:27:44,000
Speaker 6: look at the Washington administration, for example, the average tenure

492
00:27:44,040 --> 00:27:47,120
Speaker 6: of the justices he appointed was less than eight years,

493
00:27:47,320 --> 00:27:50,400
Speaker 6: whereas now the most recent departures from the courtator through

494
00:27:50,440 --> 00:27:52,960
Speaker 6: death or resignation, have been about thirty years. So this

495
00:27:53,080 --> 00:27:56,040
Speaker 6: is dramatically different than what was envisioned at the start.

496
00:27:56,200 --> 00:27:58,720
Speaker 6: And it also means that there's a tremendous amount of

497
00:27:58,800 --> 00:28:02,760
Speaker 6: luck in terms of which president controls the justices on

498
00:28:02,800 --> 00:28:06,119
Speaker 6: the Court. So, for example, Jimmy Carter in four years

499
00:28:06,480 --> 00:28:09,359
Speaker 6: had actually no appointment, whereas in the same period of

500
00:28:09,440 --> 00:28:12,560
Speaker 6: time Donald Trump had three appointments. So one of the

501
00:28:12,600 --> 00:28:15,480
Speaker 6: things that Biden's proposal would do is essentially take the

502
00:28:15,600 --> 00:28:18,960
Speaker 6: luck and happenstance out of the appointments to the Court

503
00:28:19,119 --> 00:28:22,280
Speaker 6: by saying that every president would have an appointment every

504
00:28:22,280 --> 00:28:25,480
Speaker 6: two years. So that really would bring I think the

505
00:28:25,600 --> 00:28:27,679
Speaker 6: make up of the court much more in line with

506
00:28:28,040 --> 00:28:30,600
Speaker 6: what people determined in the presidential election, So I think

507
00:28:30,680 --> 00:28:31,600
Speaker 6: this would make sense.

508
00:28:31,760 --> 00:28:35,119
Speaker 2: Biden is also calling for a binding ethics code that

509
00:28:35,160 --> 00:28:40,360
Speaker 2: would require the justices to disclose gifts, refrain from political activity,

510
00:28:40,400 --> 00:28:44,360
Speaker 2: and recuse themselves from cases presenting conflicts of interest for

511
00:28:44,720 --> 00:28:48,239
Speaker 2: themselves or their spouses. Now, Democrats have been trying to

512
00:28:48,240 --> 00:28:51,320
Speaker 2: pass an ethics code to no avail. But are there

513
00:28:51,360 --> 00:28:55,360
Speaker 2: any constitutional problems with an enforceable ethics code.

514
00:28:55,560 --> 00:28:58,160
Speaker 6: Well, I don't think there's a problem with this. For example,

515
00:28:58,480 --> 00:29:02,200
Speaker 6: we have binding codes ethics for people in the executive pinch.

516
00:29:02,760 --> 00:29:05,800
Speaker 6: It's really the same thing. Congress here would be creating

517
00:29:05,880 --> 00:29:09,480
Speaker 6: an ethical framework for Supreme Court justices. So it seems

518
00:29:09,480 --> 00:29:11,640
Speaker 6: to me that it's something that Congress should be able

519
00:29:11,640 --> 00:29:14,000
Speaker 6: to do. But again, this is something that is debated,

520
00:29:14,040 --> 00:29:16,600
Speaker 6: and there's some people who will say, for example, Justice

521
00:29:16,680 --> 00:29:19,480
Speaker 6: Alito has said this would not be constitutional, but.

522
00:29:19,800 --> 00:29:23,400
Speaker 2: The Constitution states that the Supreme Court's jurisdiction must be

523
00:29:23,520 --> 00:29:27,440
Speaker 2: exercised under such regulations as the Congress shall make.

524
00:29:27,720 --> 00:29:30,840
Speaker 6: Well is whether this is the kind of regulation that

525
00:29:30,920 --> 00:29:33,560
Speaker 6: the Constitution has contemplated. And again, this would be a

526
00:29:33,600 --> 00:29:36,240
Speaker 6: new question. The Supreme Court has never been subject to

527
00:29:36,360 --> 00:29:39,320
Speaker 6: congressional rules like this, But as a legal matter, the

528
00:29:39,400 --> 00:29:42,680
Speaker 6: question is whether this would fall into the Constitution's text

529
00:29:42,680 --> 00:29:45,600
Speaker 6: about regulation, and that's really debatable. I think it would,

530
00:29:45,800 --> 00:29:48,120
Speaker 6: but again Justice Alito has said that it would not,

531
00:29:48,440 --> 00:29:50,440
Speaker 6: and it would ultimately be a question for the Court.

532
00:29:50,720 --> 00:29:52,800
Speaker 2: Well, that seems to be the catch twenty two for

533
00:29:52,880 --> 00:29:57,480
Speaker 2: both this proposal and the term limits proposal. Both ultimately

534
00:29:57,560 --> 00:30:00,520
Speaker 2: would end up at the Supreme Court, and the costices

535
00:30:00,560 --> 00:30:03,920
Speaker 2: would be the arbiters of whether they're constitutional or not,

536
00:30:04,120 --> 00:30:07,440
Speaker 2: and how much would an ethics code really accomplish. It

537
00:30:07,480 --> 00:30:10,960
Speaker 2: would stop them from accepting gifts, get them to recuse

538
00:30:11,000 --> 00:30:14,160
Speaker 2: from a few cases, but it wouldn't make them any

539
00:30:14,280 --> 00:30:16,240
Speaker 2: less partisan in their decision making.

540
00:30:16,640 --> 00:30:19,760
Speaker 6: The argument would be that when they're accepting gifts, you

541
00:30:19,760 --> 00:30:21,920
Speaker 6: know what affects the way in which they think about cases,

542
00:30:22,040 --> 00:30:25,760
Speaker 6: So it's not partisan directly. But I think underlying the

543
00:30:25,800 --> 00:30:28,360
Speaker 6: idea of an ethics code is the idea that when

544
00:30:28,400 --> 00:30:31,760
Speaker 6: we received gifts, it tends to color your point of view,

545
00:30:31,960 --> 00:30:34,360
Speaker 6: and so the ethics would take that out of the equation.

546
00:30:34,640 --> 00:30:38,280
Speaker 2: I don't know if he has made any very specific suggestions.

547
00:30:38,280 --> 00:30:41,280
Speaker 2: But this would be enforceable by whom.

548
00:30:41,520 --> 00:30:44,200
Speaker 6: Well, I think that's a question. So what's the mechanism

549
00:30:44,320 --> 00:30:47,360
Speaker 6: for enforcement. One of the suggestions that people have had

550
00:30:47,520 --> 00:30:50,480
Speaker 6: is that you would put together a panel of lower

551
00:30:50,480 --> 00:30:53,720
Speaker 6: court judges who would decide what's appropriate and what's not appropriate.

552
00:30:53,880 --> 00:30:56,320
Speaker 6: So it would take it out of the Supreme Court

553
00:30:56,480 --> 00:30:59,400
Speaker 6: deciding for its help, and give it to other federal judges.

554
00:30:59,480 --> 00:31:01,400
Speaker 6: If this were to go forward, and it's not going

555
00:31:01,440 --> 00:31:03,280
Speaker 6: to go forward with this Congress, but if we're to

556
00:31:03,320 --> 00:31:05,160
Speaker 6: go forward in the future, I think that is the

557
00:31:05,160 --> 00:31:06,240
Speaker 6: most likely framework.

558
00:31:06,600 --> 00:31:09,680
Speaker 2: Then he's calling for a constitutional amendment to ensure that

559
00:31:09,760 --> 00:31:14,240
Speaker 2: former presidents can be tried for crimes committed while in office.

560
00:31:14,600 --> 00:31:19,800
Speaker 2: Amending the Constitution is virtually impossible these days. It requires

561
00:31:19,840 --> 00:31:22,640
Speaker 2: approval from three quarters of the states.

562
00:31:22,840 --> 00:31:26,800
Speaker 6: Well, it's incredibly hard, but it's incredibly hard really for

563
00:31:27,040 --> 00:31:29,600
Speaker 6: most of American history. I think this does two things.

564
00:31:29,600 --> 00:31:33,160
Speaker 6: One is it's a symbolic statement, and it's also an

565
00:31:33,240 --> 00:31:38,280
Speaker 6: indication of disapproval of the Supreme Court's decision in compers

566
00:31:38,360 --> 00:31:41,240
Speaker 6: the United States. So I think it's unlikely that this

567
00:31:41,320 --> 00:31:44,400
Speaker 6: would be adopted, but it still is a very powerful statement.

568
00:31:44,800 --> 00:31:47,440
Speaker 2: Biden didn't include a couple of things that have been

569
00:31:47,520 --> 00:31:51,560
Speaker 2: proposed at various times, one being packing the court or

570
00:31:51,600 --> 00:31:54,720
Speaker 2: adding more justices to the court, and that doesn't have

571
00:31:55,200 --> 00:31:59,560
Speaker 2: the legal problems that his other suggestions have. It's allowed

572
00:31:59,600 --> 00:32:00,480
Speaker 2: by the institution.

573
00:32:00,920 --> 00:32:01,360
Speaker 7: That's right.

574
00:32:01,560 --> 00:32:04,600
Speaker 6: Congress has the ability to establish the number of justices

575
00:32:04,640 --> 00:32:06,880
Speaker 6: on the court. So right now we have nine, and

576
00:32:06,960 --> 00:32:09,560
Speaker 6: we've had nine for more than one hundred and fifty years,

577
00:32:09,600 --> 00:32:12,160
Speaker 6: but that's not written into the Constitution. And we've had

578
00:32:12,240 --> 00:32:14,920
Speaker 6: different numbers of justices over time. So if we've had

579
00:32:14,920 --> 00:32:17,240
Speaker 6: as fuge times and we've had as many as ten,

580
00:32:17,400 --> 00:32:21,960
Speaker 6: so there's really no constitutional problem with creating more justiceship.

581
00:32:22,280 --> 00:32:25,680
Speaker 6: The reason why he didn't do that is that that

582
00:32:26,080 --> 00:32:29,640
Speaker 6: would feel very partisan. So for example, if you were

583
00:32:29,680 --> 00:32:32,960
Speaker 6: to have three more justices that a democratic president put

584
00:32:32,960 --> 00:32:36,320
Speaker 6: a point, then there would be a point about those justices.

585
00:32:36,520 --> 00:32:39,040
Speaker 6: It almost inevitably the next time you had a Republican

586
00:32:39,080 --> 00:32:42,680
Speaker 6: president or Republican tilS it would be expanded. Even more so,

587
00:32:43,000 --> 00:32:46,040
Speaker 6: he has proposed something that's not packing the court but

588
00:32:46,160 --> 00:32:49,840
Speaker 6: is really designed to be I think nonpartisan, to give

589
00:32:49,960 --> 00:32:53,240
Speaker 6: every president moving forward two seats. And on top of that,

590
00:32:53,520 --> 00:32:56,000
Speaker 6: also to say that the justices on the Court will

591
00:32:56,240 --> 00:33:00,240
Speaker 6: have lifetime tenures, so it will not alter short term

592
00:33:00,680 --> 00:33:05,200
Speaker 6: the court's makeup. They're six Republican appointees, three Democratic appointees.

593
00:33:05,360 --> 00:33:08,800
Speaker 6: It would be a very long time before you could

594
00:33:08,800 --> 00:33:12,800
Speaker 6: conceivably have under prison Biden's in formula a shift towards

595
00:33:12,800 --> 00:33:15,520
Speaker 6: a Supreme Court in which most of the appointees were Democratic.

596
00:33:15,840 --> 00:33:21,520
Speaker 2: Another widely discussed reform that Biden didn't propose is called

597
00:33:21,720 --> 00:33:25,640
Speaker 2: jurisdiction stripping, and it is constitutional. So why do you

598
00:33:25,640 --> 00:33:27,760
Speaker 2: think Biden left that out right?

599
00:33:27,840 --> 00:33:32,360
Speaker 6: So Congress has substantial control over the jurisdiction of the Court.

600
00:33:32,520 --> 00:33:34,800
Speaker 6: So at very times in the past it's taken certain

601
00:33:34,840 --> 00:33:37,360
Speaker 6: issues away from the Supreme Court, and that's what we

602
00:33:37,440 --> 00:33:41,440
Speaker 6: call jurisdiction stripping. But that's not something that his proposals

603
00:33:41,480 --> 00:33:44,680
Speaker 6: called for, and I think that's really not been something

604
00:33:44,720 --> 00:33:46,960
Speaker 6: that has been at the top of the date. His

605
00:33:47,200 --> 00:33:50,000
Speaker 6: proposals really track the things that people are focusing on,

606
00:33:50,080 --> 00:33:52,960
Speaker 6: that some kind of expansion of the court, some kind

607
00:33:52,960 --> 00:33:55,040
Speaker 6: of ethics code. And then also in the wake of

608
00:33:55,080 --> 00:33:57,880
Speaker 6: Trump versus the United States, a constitutional amendment that would

609
00:33:57,920 --> 00:34:00,480
Speaker 6: lead to a different result, and that would provide that

610
00:34:00,520 --> 00:34:03,920
Speaker 6: presidents can be prosecuted, which is before the division Trump

611
00:34:04,000 --> 00:34:06,840
Speaker 6: versus the United States, That's been something that has been

612
00:34:06,880 --> 00:34:10,320
Speaker 6: assumed throughout American history. I worked on the Iran Contra

613
00:34:10,400 --> 00:34:14,600
Speaker 6: investigation and the focus was on whether President Reagan was

614
00:34:14,680 --> 00:34:17,640
Speaker 6: guilty of criminality, and during the course of that investigation,

615
00:34:17,960 --> 00:34:20,640
Speaker 6: there was really no argument that you shouldn't be considering

616
00:34:20,680 --> 00:34:23,800
Speaker 6: presidential criminality. Same thing in Water. So the Trump versus

617
00:34:23,880 --> 00:34:27,000
Speaker 6: United States decision is something that really represents the departure

618
00:34:27,200 --> 00:34:30,360
Speaker 6: from something that has been assumed to be the case

619
00:34:30,560 --> 00:34:33,080
Speaker 6: really all the way back to the times of the Founders.

620
00:34:33,520 --> 00:34:39,200
Speaker 2: During his term, Biden resisted calls from progressives to seek

621
00:34:39,239 --> 00:34:43,320
Speaker 2: reform to the Supreme Court. Why now with six months

622
00:34:43,400 --> 00:34:46,080
Speaker 2: left in his term, Well, I.

623
00:34:46,000 --> 00:34:49,160
Speaker 6: Think he wants to make a statement as his presidency

624
00:34:49,280 --> 00:34:52,480
Speaker 6: was drawing to a close that he thinks the Supreme

625
00:34:52,520 --> 00:34:56,160
Speaker 6: Court is off the rails in a lot of crucial areas.

626
00:34:56,280 --> 00:34:59,160
Speaker 6: And I think he didn't act before now because this

627
00:34:59,280 --> 00:35:02,000
Speaker 6: is cumulative. You know what he's seeing over time is

628
00:35:02,040 --> 00:35:04,960
Speaker 6: there are more and more decisions in which the Court

629
00:35:05,040 --> 00:35:08,760
Speaker 6: is departing from the original understanding or departing from precedent.

630
00:35:09,160 --> 00:35:11,600
Speaker 6: And I think Trump versus the United States might have

631
00:35:11,680 --> 00:35:14,439
Speaker 6: been the trigger for him. That is a decision where

632
00:35:14,480 --> 00:35:17,280
Speaker 6: I think he would say that the Court has taken

633
00:35:17,360 --> 00:35:20,520
Speaker 6: a position that's really at odds with principles of the

634
00:35:20,600 --> 00:35:23,560
Speaker 6: rule of law, and some steps has to be taken

635
00:35:23,640 --> 00:35:25,640
Speaker 6: to address that. At the same time, I think this

636
00:35:25,840 --> 00:35:29,399
Speaker 6: chose a tremendous amount of restraint because what the rest

637
00:35:29,480 --> 00:35:31,720
Speaker 6: of us were pushing for when he came into office

638
00:35:31,760 --> 00:35:35,560
Speaker 6: that have been pushing threat is expanding the number of justices,

639
00:35:35,640 --> 00:35:38,120
Speaker 6: and he hasn't done that. He's gone for with something

640
00:35:38,120 --> 00:35:41,560
Speaker 6: that's I think both more nuanced and more respectful of

641
00:35:41,760 --> 00:35:44,600
Speaker 6: partisan balance. It's really much more nonpartisan because it would

642
00:35:44,600 --> 00:35:47,680
Speaker 6: give to every president to appointments for every term, so

643
00:35:47,760 --> 00:35:50,279
Speaker 6: that's not a partisan results, but it does reflect the

644
00:35:50,360 --> 00:35:53,160
Speaker 6: idea that we should move away from that kind of

645
00:35:53,360 --> 00:35:56,279
Speaker 6: thirty years on the court, which is what we're seeing now,

646
00:35:56,320 --> 00:35:58,400
Speaker 6: and move to something that is much more like I

647
00:35:58,400 --> 00:35:59,400
Speaker 6: think with the Founders and.

648
00:35:59,440 --> 00:36:03,920
Speaker 2: This a recent Annenberg report finds quote, a withering of

649
00:36:04,000 --> 00:36:07,120
Speaker 2: public confidence in the court, and all the polls basically

650
00:36:07,160 --> 00:36:09,719
Speaker 2: show the same thing. Has there been another time in

651
00:36:09,840 --> 00:36:13,560
Speaker 2: history when there's been this crisis of confidence in the

652
00:36:13,600 --> 00:36:14,600
Speaker 2: Supreme Court.

653
00:36:14,800 --> 00:36:17,800
Speaker 6: The most prominent time in which there's been a crisis

654
00:36:17,840 --> 00:36:21,520
Speaker 6: of confidence in the Supreme Court was during President Franklin

655
00:36:21,560 --> 00:36:26,319
Speaker 6: Roosevelt's administration. The court struck down many crucial pieces of

656
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Speaker 6: newbial legislation, So there was tremendous, tremendous concern about the court. Now,

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Speaker 6: President Franklin Thosevelt pushed it too far. He tried to

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Speaker 6: pack the court, and that generated a lot of opposition.

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Speaker 6: But that's the period in which most recently we've seen

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Speaker 6: incredible concern about the Supreme Court and I think a

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Speaker 6: sense that it was out of step with popular wealth.

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Speaker 6: This is a time in which there is a concern

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Speaker 6: about the Court in a way that we have not

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Speaker 6: seen for almost one hundred years. So the significance of

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Speaker 6: President Biden's proposals is that it's part of a focus

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Speaker 6: on the court, which again is new within the lifetime

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Speaker 6: of virtually every American.

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Speaker 2: Thanks so much for your insights, Dean. That's Dean William

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Speaker 2: Trainer of Georgetown Law. And that's it for this edition

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Speaker 2: of the Bloomberg Law Podcast. Remember you can always get

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Speaker 2: the latest legal news by subscribing and listening to the

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Speaker 2: show on Apple Podcasts. Spotify and at Bloomberg dot com,

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Speaker 2: slash podcast slash Law. I'm June Grosso and this is

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Speaker 2: Bloomberg